8 February 2012
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Hotel ADA defense and compliance lawyer
As everyone scrambles to meet the March 15, 2012 deadline for complying with the new ADA Standards, the mandatory pool lift requirement is getting a lot of attention. Here is the latest from my partner, Marty Orlick, head of our ADA defense and compliance team.
What the DOJ says about portable pool lifts
and the new ADA Standards
by
Martin H. Orlick, Esq. | ADA Compliance and Defense 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.
What does this all mean to you?
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.
Adding to the confusion the DOJ has created among hotel owners and operators on this issue, it also has created tremendous uncertainty among pool lift manufacturers and distributors. We are now getting calls from these business owners as they seek direction in how to help their customers comply with the 2010 ADA Standards for pool access.
As the industry scrambles to comply with the new pool lift requirements, we will keep you informed of any new developments.
Other ADA defense and compliance resources
You can access the full library of ADA materials on Hotel Law Blog by going to the home page, selecting the tab at the top that says “HOTEL LAW TOPICS”, and then clicking on “ADA Defense & Compliance” in the drop down menu . . . or by clicking here.
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ADA Defense Lawyer: How to handle an ADA lawsuit . . . and How not to do it
This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We’ve done more than $87 billion of hotel transactions and have developed innovative solutions to unlock value from hotels. Who’s your hotel lawyer?
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Martin H. Orlick is one of the top ADA defense lawyers in the country, having helped clients with more almost 500 ADA cases for hotels and other businesses. He is also is a senior member of the law firm’s Global Hospitality Group®, a partner in the real estate department, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.
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Our Perspective. We represent hotel lenders, owners and investors. We have helped our clients find business and legal solutions for more than $125 billion of hotel transactions, involving more than 4,700 properties all over the world. For more information, please contact Jim Butler at jbutler@jmbm.com or +1 (310) 201-3526.
Jim Butler is a founding partner of JMBM, and Chairman of its Global Hospitality Group® and Chinese Investment Group®. Jim is one of the top hospitality attorneys in the world. GOOGLE “hotel lawyer” and you will see why.
Jim and his team are more than “just” great hotel lawyers. They are also hospitality consultants and business advisors. They are deal makers. They can help find the right operator or capital provider. They know who to call and how to reach them.