More From ARVC on ADA Pool and Spa Requirements
Editor's Note: Paul Bambei, president and CEO of the National Association of RV Parks and Campgrounds (ARVC), sent this memo to ARVC members today (Feb. 21):
Dear Members of ARVC:
Having worked closely with ARVC’s national lobbyist at McDermott Will & Emery, I understand the reaction of many ARVC members to the recently revised U.S. Department of Justice guidance concerning the Americans with Disabilities Act, specifically as it relates to providing accessible means of entry to existing swimming pools and spas. Recall that existing pools and spas must have two accessible means of entry in place by March 15, 2012 — one of which must be a pool lift or sloped entry — to the extent barrier removal is readily achievable. The Department of Justice states that readily achievable means "easily accomplishable without much difficulty or expense."
Some of the clarifications we’ve been able to ascertain from recent conversations with the DoJ and other associations involved with the ADA revised ruling include the following:
- All lifts must be fixed or attached to a deck at all times the pool is open to guests. A portable lift is not acceptable unless it can also be fixed to the deck with clamps, screws or bolts.
- Properties that have already purchased portable lifts will need to find a way to secure the lift to the deck or purchase a new lift that can be fixed.
- DOJ expects lifts at all pools and most spas to be in place by March 15, or when the pool/spa is opened.
- Lifts cannot be shared between pools.
- A lift must be installed if it is readily achievable.
- External factors such as insurance rates, child safety, hiring additional staff to monitor safe usage and/or maintain the operation of the lift cannot be factors in determining excessive cost.
To help clarify some of the questions you may have, we’ve identified some answers:
Regarding Insurance Liability of pool lifts, we contacted our Preferred Provider, Evergreen Insurance, who commented as follows:
“Of course we can’t speak for all your members, but certainly for all our clients (and I expect the vast majority of members, as most companies will adopt the same stance) here are three points for you:
1. If a personal injury occurs on a pool lift, that is covered by General Liability insurance
- There is no additional insurance premium for a pool lift being added to a pool
- The only ‘safety’ recommendation other than manufacturer recommendations is a sign to tell people it is not a toy and to stay off the equipment. While we don’t endorse or promote it, here is one sample sign:
2. Regarding pre-purchase of a portable pool lift, we contacted our main supplier council member for pool lifts, Planet Access, who stated if the unit has not yet shipped, they will be happy to work with ARVC members to re-order any unit they prefer at no cost. You should contact Ken Bauer, Planet Access, to make any order changes immediately at email@example.com (406) 239-2705. This company offers excellent ARVC member price discounts on all pool lift equipment, and has products that are flexible in that they can be bolted to the deck for short-term permanency, then unbolted and easily carted out of the weather during the off season when your pool is closed. Additionally, for any member who has already purchased a portable unit that may not fit the permanency guidelines of the ADA, Planet Access has just developed a retro-fit kit that will allow its portable lifts to be “fixed” to the pool deck.
3. Regarding electrical wiring, most pool lift equipment runs on battery power, which is recommended to be unplugged for re-charging on a nightly basis. There should be no need for hard wiring/grounding this equipment.
4. One point that did come out last week that was not widely known previously is that if your pool is not open until some date after March 15th, your pool does not have to have the lift (or gradual slow sloped ramp per the strict specifications) until your pool opens.
Of course, our main concern is with the timing of this new ADA guidance. While I’m sure the DoJ may argue the original ADA language was always intended to provide a lift for every pool or spa, the fact they came out with their clarification at the end of January left just six weeks before the March 15, 2012 compliance date. Our position is that this new guidance was very ill timed.
For this reason, ARVC is talking with the American Hotel and Lodging Association, which has also been severely impacted by this latest guidance, to determine what remedies, either legislative or legal, can be achieved through potential coalition. We are also in discussions with key Congressional offices in an attempt to educate legislators on some of the realistic hardships this new guideline imposes on our industry. We will certainly work this topic into the dialog at arvc’s upcoming National Issues Conference on May 8-9th as well.
That said, I feel it is our duty to inform ARVC members of the realities of DC politics, as experienced by our colleagues at McDermott, Will and Emery. According to our attorney David Ransom, the DoJ is very unlikely to reconsider its guidance, and that is even less likely in the short term (prior to the March 15 compliance date). He also believes they will not be particularly persuaded by any political pressure from Capitol Hill. The ADA was enacted with strong bipartisan support, back in the early '90s. George H.W. Bush signed it into law when he was president. There continues to be bipartisan support on the Hill today for the ADA.
So, if you went to a Member of Congress's office and protested about how this DoJ guidance is symptomatic of "over-reaching" government or is simply outrageous, you likely would be met with a series of questions. First, doesn't this guidance provide public accommodations with an escape hatch, ie, barrier removal must be "readily achievable?" The short answer is, yes it does, readily achievable means easily accomplished and able tobe carried out without much difficulty or expense. What is readily achievable must be determined on a case by case basis. Second, even if the barrier removal (eg, pool lift, sloped entry) is readily achievable, tax credits and deductions are available for small businesses for barrier removal costs or alterations. Knowing this, it is MWE’s opinion that a Member of Congress is going to be far less sympathetic to a public accommodation's complaint that it must comply with these regulations.
In conclusion, we will continue to serve ARVC members by working with AH&LA and others to determine if this guidance can be altered. But members need to be mindful that March 15 is fast approaching, and they have an obligation to determine whether barrier removal at their existing pools is readily achievable. arvc was way out in front on this issue, providing guidance to its members months ago, and we will continue to provide updates from our work in DC as they occur.
Finally, I would strongly recommend that this issue not be the focal point of our legislative advocacy. I think arvc is strongly positioned to deliver a positive message on the benefits of travel, tourism and recreation. This is a message that resonates with both Democrats and Republicans, and it is one that arvc members understand very well.