News for the Hospitality Executive |
May 8, 2012 - The House of Representatives this afternoon began consideration of the Commerce, Justice , State Appropriations bill, H.R. 5236, which includes an amendment prohibiting for one year the Department of Justice from enforcing the permanent pool lift requirements under the 2010 ADA. We have recently learned that there may be an effort to strip this amendment from H.R. 5236 later this evening. AH&LA members are urged to contact Congress to request that this amendment remains in the final bill. Contact your Representative this evening to ask them to prevent the Carter-Nunnelee-Flake Amendment from being removed from the CJS appropriations bill. Members of the House of Representative can be reached at (202) 225-3121. Below are the key points to raise with your Representatives. Futher, below are several myth-v-fact issues.
Myths
V. Facts in support of Carter-Nunnellee-Flake Amendment to DJS
Appropriations
bill on ADA Pool Lift Regulations Myth:
This amendment
rolls back the protections of the ADA Fact: The
amendment
repeals no section of the ADA nor does it repeal the requirement for
accessible
pool and spa entries for public accommodations. The business community
supports
the goal of meeting reasonable entry requirements that will balance the
needs
of Americans with disabilities and keeping children safe.
This amendment in no way affects a public
accommodation’s obligation to provide a pool lift in a timely way to
guests who
request it. This amendment will only
prevent DOJ from requiring that a pool lift be attached to
the pool deck and kept at the pool or spa when no one
needs it. This condition would be
dangerous for children who will play and jump off of the lift. It would be irresponsible to ignore this
risk. Myth: The
pool lift
requirement has been around for 20 years—the business community waited
till the
last minute to protest. Fact:
There was no
requirement under the ADA to provide accessible entries into pools and
spas
until DOJ published the 2010 ADA Title III regulations in September
2010. However, those regulations did not
require
fixed lifts. Thus, businesses could use
portable lifts that can be promptly brought out upon request. On January 31, 2012, less than two months
from the compliance deadline, DOJ issued a guidance stating that fixed
lifts
were the option types of lift that are acceptable, unless it is not
readily
achievable to install a fixed lift. This
was a last-minute radical change in the regulations and the business
community
promptly objected to it. Fact: A fixed pool
lift presents several significant risks that portable lift does
not—particularly
at unattended pools. Children and adolescents will use them as jumping
or
diving platforms into the shallow end of the pool; swimmers may become
trapped
under the seat when the seat is in the water; if a fixed lift fails
during use
no one will know that the lift is being used; lifts are not
manufactured to
endure environmental conditions which will have a greater adverse
impact if the
lifts are required to be fixed to an outside pool deck at all hours.
According
to one study published in the American Journal of Pediatrics in 2008,
111,341
children were injured in diving-related accidents at swimming pools
from 1990
to 2006. Pool lifts are similar to diving boards in that they provide
an
elevated platform from which to dive into the pool. The fact that pool
lifts
must be placed at the shallow end of the pool or at shallow spas makes
them
potentially even more dangerous. Myth:
Fixed lifts
are easily purchased and installed. Fact: Not
enough
fixed lifts can be produced to equip the number of pools and spas in
the United
States that need them, and the installation of fixed lifts is
considerably more
complicated than the purchase of portable lift that can be used
immediately. According
to the Association of Pool and Spa Professionals (APSP), there are
85,284
swimming pools at lodging facilities, 55,311 community pools, and
26,883 pools
run by parks and recreation departments in the United States. The APSP
further
estimates that a third of the number of hotels with pools also have a
spa (i.e.,
28,333), which means that there are more than 200,000 pools and spas
that must
be outfitted with pool lifts. DOJ has
stated that there are at least 100,000 pools and spas that require pool
lifts. The APSP reported to DOJ that the
top three pool lift manufacturers can only produce anywhere from 2,500
to 5,000
lifts per month, or 15,000-30,000 in six months. While it is possible
that at
some point in the future these companies might be able to open new
plants to
increase production capacity, this is purely speculative at this time. Thus, in the absolute best case scenario
and using DOJ’s numbers, there will only be enough lifts made to supply
30% of
covered pools and spas by September 17, 2012. Unlike
portable lifts, fixed lifts must
be attached to the pool deck. Installing
a fixed lift requires a contractor, permits, partial demolition of the
pool
deck, electrical bonding, and deck reconstruction.
Fact: A
study
conducted by the federal U.S. Access Board found that individuals with
disabilities reported having to wait only an average of 6.1 minutes for
the
pool lift to be brought out, and there was no requirement for any lifts
at all
when the study was conducted. Now that
pool lifts are a legal requirement, businesses will be much more
informed about
pool lifts and have procedures in place to ensure that lifts are
brought out
promptly. Myth:
Americans with
disabilities should not have to ask for any accommodation. Fact: The
ADA is a
law that seeks to balance legitimate business and safety concerns with
the goal
of providing equal access. In some
cases, immediate access can be provided without compromising any
countervailing
concerns. In pool lift situation,
leaving a pool lift out next to the pool or spa at all times when these
facilities is open increases the risk that children will injure
themselves
while using it a jumping or diving platform, particularly at pools that
do not
have lifeguards. A portable lift that is
promptly brought out upon request minimizes this risk while at the same
time
providing access to the pool. It is
important to keep in mind that the
ADA contemplates many instances where individuals with disabilities
must
request specific accommodations needed for access.
For example, not all guest
rooms must be accessible. Individuals with
disabilities must request an
accessible guest room. Individuals who
are deaf must ask for a sign language interpreter.
Blind individuals must ask for Braille or
large print menus in restaurants, or Braille or large print statements
from a
bank. There are many instances under the
ADA where a person with a disability must request an item needed for
access. Myth: The
cost for
pool lifts are nominal and a one-time expense. Fact: A
fixed pool
lift can cost upwards of $9,000 including installation. In constrast,
the cost
of a portable lift is not likely to exceed $6,300.
This
is not a one-time expense. A business
will have to expend resources on maintaining the lift on a daily basis
(charging and changing out the battery), training employees on the
lift,
monitoring the lift’s condition to make sure it is functioning
properly, and
repairing the lift. In addition, if an
accident does take place on a lift, a business will pay higher
insurance
premiums. A business may also lose
revenue from having to close the pool and spa during the installation
process. Myth
Because businesses
only have to install a lift if it is readily achievable, businesses
that do not
have the resources to install a fixed lift will not have to do so Fact:
Because the
Justice Department has announced that fixed lifts must be installed
unless they
are not readily achievable, plaintiffs looking to file lawsuits will
assume
that there is a violation if no fixed lift is present and file a
lawsuit. The business will then have to
hire an
attorney to defend the lawsuit and pay his or her fees which would
certainly
exceed the cost of the lift itself, at a minimum. Because
determining whether an action is
“readily achievable” is a difficult case-by-case analysis involving
multiple
factors, no business will be certain as to whether it really qualifies
for this
exemption. If a business wins the
lawsuit it will have paid its own attorneys’ fees.
If it loses it will pay its own fees, the
plaintiff’s attorneys’ fees, and the cost of installing a fixed lift as
well. Thus, the idea that the “readily
achievable” provision removes the burden from businesses is a fallacy. To
make matters worse, DOJ has
repeatedly told businesses that if they cannot purchase and install a
fixed
lift at this time, their obligation to install a fixed lift at a future
date
remains when it does become readily achievable. DOJ expects all
businesses to
install lifts at some future date. Myth:
Regulated
property owners had the advanced notice required by law regarding the
permanent
pool lift requirements. Fact:
The
Justice Department has circumvented the “notice and comment” rulemaking
process
required by the Administrative Procedure Act (APA), as amplified by
Executive
Orders issued by both Presidents Obama and Clinton for open and
transparent
regulations. The first time the Justice Department told the
regulated
community that it expected ADA compliance by installing fixed pool and spa lifts was
through a January 31, 2012
technical “guidance” document. Never before had DOJ expressed a
requirement
for fixed pool lifts to the exclusion of all other options unless a
business
can demonstrate that a fixed pool lift is not readily achievable. By failing to ask regulated stakeholders to
comment on the requirement for fixed pool lifts, the Justice Department
has
ignored the notice and comment requirements of the APA that must attend
any
rulemaking – and, as a result, DOJ has also avoided analyzing the
economic
impacts on small businesses otherwise required by the Regulatory
Flexibility
Act. Serving the hospitality industry for a century, AH&LA is the sole national association representing all sectors and stakeholders in the lodging industry, including individual hotel property members, hotel companies, student and faculty members, and industry suppliers. Headquartered in Washington, D.C., AH&LA provides members with national advocacy on Capitol Hill, public relations and image management, education, research and information, and other value-added services to provide bottom-line savings and ensure a positive business climate for the lodging industry. Partner state associations provide local representation and additional cost-saving benefits to members. |
Contact: Kevin Maher (202) 289-3147 |