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Mr. Brewer III

ADA Compliance

DOJ to Industry - Pools and Spas Need At Least One Accessible Means of Entry

By William A. Brewer III, Managing Partner, Bickel & Brewer

The new regulations establish different standards for pools and spas that depend upon their size. Larger pools, with more than 300 linear feet of pool wall, must have two accessible means of entry, while smaller pools and spas require one. The DOJ also requires that every pool and spa have at least one pool lift or sloped entry, with a minor exception for clustered spas.

Operators using "fixed" pool lifts (which are attached to the pool deck or apron) must ensure that they are in position and ready for use during hours that the pool is open. This means that pool lift batteries must be fully charged and operational during pool hours. Equipment must also permit independent operation by persons with disabilities.

Pools that require an additional means of entry have the added option of installing a transfer system, transfer wall or pool stairs. Portable or "non-fixed" pool lifts are acceptable only if an owner or operator can establish that installing a fixed pool lift is not "readily achievable."

Sharing accessible equipment between pools is not permitted unless it is an undue burden to provide equipment at both. Compliance for new or altered construction is absolute, while existing places of lodging can apply the "readily achievable" standard to determine whether the new ADA standards apply to them.

The DOJ defines "readily achievable" simply as "easily accomplishable without much difficulty or expense." Notwithstanding this plain definition, determining whether required action is "readily achievable" involves a fact-intensive inquiry and varies from business to business and sometimes from year to year.

The factors that are considered include:

  • Nature and cost of compliance;
  • Overall financial and other resources available to the venue's owner, the operator and, in some instances, the related parent company, including the number of employees and the effect on expenses and resources;
  • If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure and functions of the workforce of the parent corporation or entity;
  • Legitimate safety requirements necessary for safe operation, including crime prevention measures;
  • Impact on a venue's operations; and
  • The geographic separateness, and the administrative or fiscal relationship of the subject venue to any parent company or entity.

In light of these factors, the general rule is that if compliance is physically possible and does not "break the bank," then the DOJ will find it "readily achievable." The DOJ has explicitly rejected the claimed risk of "attractive nuisance" lawsuits or anticipated increased insurance costs arising out of the presence of a lift as factors of the "readily achievable" analysis. Even if a hotel owner can establish a financial or logistical inability to make the mandated capital improvements, obligations under the ADA are ongoing and a plan of compliance must be devised to backstop potential legal troubles. Federal tax incentives for "small businesses" (i.e., with 30 or fewer employees or total revenues of $1 million or less) and tax deductions for businesses of any size are available to help cover the costs of making access improvements for people with disabilities.

And, since the DOJ has made clear that ADA responsibility also exists for franchisors regarding their franchised hotels, the entire industry needs to be aware of the new regulations and prepared to comply with them.
Risks Associated with Non-Compliance

Despite several attempts by the hospitality industry to halt or further delay the DOJ from implementing the new requirements, the time to comply with the ADA and the new standards has arrived. Places of lodging that fail to do so face federal and state enforcement actions and civil penalties of up to $55,000 for the initial violation and $110,000 for each subsequent violation.

Although individual investigations are uncommon, the DOJ has regularly used its enforcement powers to survey groups of businesses to determine ADA compliance. In 2005, the DOJ conducted an investigatory "sweep" that focused on the accessibility of 60 hotels in Manhattan's Times Square Theatre District. No category of hotel was immune: boutique, luxury, national brands and limited service properties were all swept into the investigation. That initiative led to the negotiation of several significant voluntary compliance agreements. Ultimately, every subject property became accessible.

The ADA also contains a private enforcement mechanism, empowering persons with disabilities to file individual lawsuits to compel compliance with accessibility regulations, and providing for the recovery of attorneys' fees and actual damages. Since civil rights advocates closely monitor the industry's progress of conformance, and have repeatedly voiced their frustration that many public pools have yet to accommodate disabled swimmers, non-accessible facilities will likely draw public and legal scrutiny. California-based hotels should be particularly concerned because the state's civil rights act incorporates the ADA by reference, making any violation of the ADA a violation of the state act, and provides for significant remedies, including actual, statutory and punitive damages, in addition to attorneys' fees.

With over 3.3 million people in the United States who use wheelchairs, hotel owners and franchisors that have not made the legally required improvements may soon be swimming in a pool of lawsuits. And since it is estimated that Americans with disabilities or reduced mobility currently spend an average of $13.6 billion per year on travel, adhering to the ADA's mandates is not only the right thing to do, it is smart business.

Recommended Plan of Action: How to Minimize Liability

Here are some steps that hotel investors, franchisors, owners, managers and operators should take to ensure ADA compliance and minimize their liability:

  • Determine immediately if all your properties comply with the DOJ's new standards. Ensure that pools and spas are inspected by a certified ADA compliance expert, and determine whether newly constructed or altered amenities need to have one or two accessible means of entry and exit to pools and spas;
  • Verify what specific accessibility features the DOJ requires for your property's amenities, including whether the pool lift must be "fixed," location of the pool lift, size of seat and lifting capacity, as well as the requirements for sloped entries, transfer systems and pool stairs;
  • Confirm that each pool lift can be independently operated by disabled individuals both from the deck of the pool and from the pool itself and that the operating device does not obstruct other swimmers. Note that in the past, manually operated hand cranks were considered compliant; however, the new regulations require that these old systems be phased out;
  • If providing access to an existing pool or spa is not an option, devise a plan of action to achieve compliance when doing so becomes "readily achievable" (i.e., financially and operationally achievable);
  • Ensure that sufficient staff and financial resources are invested to monitor and maintain your equipment;
  • Provide regular and systematic staff training on what accessible features are available, how to operate and maintain them, and any necessary safety concerns;
  • Survey existing insurance policies and consider adding additional coverage to protect your property against attractive nuisance lawsuits;
  • Franchisors should survey franchisees to ensure ADA compliance and amend brand standards as needed; and
  • Investors should perform due diligence to verify that acquisition targets or hospitality investments comply with the ADA.

Pool access for the physically disabled has been a hot topic in the hospitality industry ever since the DOJ first unveiled its new design standards in 2010. With civil rights activists keeping a watchful eye to ensure that public swimming pools and spas are made accessible to people with disabilities, now is the time for all properties to be in compliance. Not doing so subjects you - and the properties with which you are affiliated - to significant financial exposure and reputational risk.

Firm associate Aravella Simotas contributed to this article.

Under Mr. Brewer’s direction, Bickel & Brewer has become renowned for its innovative handling of major disputes in a number of industries, including the hospitality industry. Not only has his work in this area changed the state of the law, but it also has resulted in the formulation of creative solutions to countless problems confronting the industry. The firm has represented hotel franchisors, management companies, owners, developers, and investors in many of the highest-profile matters in the industry. Mr. Brewer is frequently published on a wide range of legal and business issues effecting the hospitality industry. He is a member of several leading industry associations, including the American Hotel & Motel Association and the Academy of Hospitality Industry Attorneys. Beyond these associations, Mr. Brewer is active in a broad range of professional groups and philanthropic organizations. Mr. Brewer III can be contacted at 214.653.4000 or wbrewer@bickelbrewer.com Extended Bio...

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