DOJ Clarifies March 15, 2012 Mandatory Pool Lift Requirement! (Uh-oh!) - By Jim Butler, Author of Www.HotelLawBlog.com

What the DOJ says about portable pool lifts and the new ADA Standards - by
Martin H. Orlick, Esq. | ADA Defense and Compliance Lawyer

A hotel client called this morning to tell me that they were about to place an order for a large number of portable pool lifts to comply with the 2010 ADA Standards, and asked whether they should take the plunge and buy them.

Without a doubt, the most frequently asked question by our hospitality clients these days is: "What do we need to do to comply with the March 15, 2012 mandatory ADA pool lift requirements?" The second most frequently asked question is: "Our pool lift vendor assures us that its portable pool lift meets all ADA requirements and is "certified" as ADA compliant? Can we rely on that representation?" If you are confused about what the new law requires, you have plenty of company.

The new ADA Standards effective March 15, 2012

The 2010 ADA Standards for pool access have significantly changed the requirements for municipal and private pools by requiring, for the first time, that they be equipped with independently useable pool lifts during all operating hours. Since the DOJ announced its intention to require lifts in nearly all pools, the hotel industry and others have opposed or sought clarification of this provision.

In October, 2010, the American Hotel & Lodging Association sought clarification of the pool lift requirements which become mandatory on March 15, 2012. The AH&LA noted that pool lifts, particularly fixed devices, are potentially dangerous to users and children playing around pools. Moreover, they can be quite costly to most pool operators. The industry's concerns apparently fell on deaf ears as evidenced by the DOJ's position issued this week.

The DOJ's position on portable pool lifts

The DOJ has officially confirmed that:

• The mandatory date for installation of pool lifts is March 15, 2012.
• Pool lifts need to be installed at each pool during all operating times and be independently operable by disabled persons.
• Pool lifts must be "fixed" unless the operator can prove that doing so would not be "readily achievable" as defined in the ADA, in which event, a portable lift meeting all of the ADA Guidelines could be deployed.
• Accessible lifts cannot be shared between a pool and a spa, each would seem to require a separate device.
• Pool lifts must be properly maintained and in good repair, with any battery components charged for use.
• Staff must be trained in the use and safety of pool lifts.

We predict that there will be significant "advocacy group" litigation and DOJ enforcement actions for owners and operators of public accommodations that do not comply with the DOJ's interpretation for fixed pool lifts.

While there is an exception for situations where a permanent pool lift is "not readily achievable," it will be very expensive and may be somewhat problematic to prove that. If you purchased a portable pool lift, you will need to find a way to anchor it in place.

Be leery of pool lift vendors who represent that their lifts, particularly portable pool lifts, are ADA "certified" or "ADA compliant" or that their lifts "meet all ADA Guidelines."

So, I recommended that our client send me a copy of the vendor's ADA "certificate" or written assurance that its pool lift complies with the ADA. It should make for interesting reading.

This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We've done more than $60 billion of hotel transactions and have developed innovative solutions to unlock value from hotels. Who's your hotel lawyer?


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