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ADA Defense and Compliance Lawyer Advisory:
DOJ Clarifies March 15, 2012 Mandatory Pool Lift Requirement! (Uh-oh!)


By Jim Butler & Martin Orlick of the Global Hospitality Group®
Author of www.HotelLawBlog.com
February 9, 2012

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 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.

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.

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.

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.

Quick! Can you pass this 3-question ADA pop quiz?

ADA Defense Lawyer: New ADA regulations kick in soon. Say goodbye to "grandfathering" under the ADA.

Updating Service Animal Policies of Your Hotel or Other "Place of Lodging"

ADA Defense Lawyer: How to handle an ADA lawsuit . . . and How not to do it

Hotel ADA Defense Lawyer: How a recent ADA case affects all hotels but particularly conference centers and meeting hotels

ADA Defense Lawyer Alert: Hilton's ADA Settlement with the Department of Justice: Precedent-setting agreement delivers more than removing architectural barriers

ADA Defense Lawyer Alert: New Regulations Now in Effect

ADA defense lawyer: Implications of the latest ADA enforcement "sweeps" against hotels in Portland and San Francisco.

Hotel ADA defense lawyer: Department of Justice (DOJ) ADA enforcement "sweeps" hit the West Coast. What you need to know now.

ADA defense lawyers: When disabled hotel guests' needs go beyond the norm for typical guests, what do hotel owners and managers have to do?

Hotel ADA Defense Lawyer: ADA Compliance is no longer an option. There is a "new sheriff" in town, and problem prevention costs a fraction of defense and compliance under a microscope.

ADA defense lawyers: ADA Sweeps by U.S. Department of Justice -- Coming to a theater district or Hotel near you soon? How to get ready before it's too late.

Hospitality Lawyers: Defending ADA lawsuits. How your hotel website can make you a target for ADA lawsuits

________________________

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.
________________________

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 help investors be successful in bidding for hotel acquisitions, and helping investors and lenders to unlock value from troubled hotel transactions. Who's your hotel lawyer?

________________________


Our Perspective. We represent hotel lenders, owners and investors. We have helped our clients find business and legal solutions for more than $60 billion of hotel transactions, involving more than 1,300 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.



JMBM’s Global Hospitality Group®
The hotel lawyers in the Global Hospitality Group® of Jeffer Mangels Butler & Mitchell (JMBM) comprise the premier hospitality practice in a full-service law firm and are the authors of the Hotel Law Blog. We represent hotel owners, developers, investors and lenders and have helped our clients find business and legal solutions for more than $60 billion of hotel transactions, involving more than 1,000 properties worldwide. For more information about the Global Hospitality Group®, go to www.HotelLawBlog.com. For more information about full range of legal services provided by JMBM, go to www.JMBM.com.
.
Contact: 

Jim Butler
jbutler@jmbm.com
310.201.3526

 

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