The fundamental principle behind the Americans with Disabilities Act is to provide equal opportunity to people with disabilities. According to the Department of Justice, disabled people have been excluded from participating in many recreational activities, including swimming.
As of March 15, all swimming pools in public accommodations must comply with standards adopted by the Justice Department.
Among the rules is that pools with greater than 300 linear feet of wall must have a second means of access — either an ADA-compliant lift or a ramp. For smaller pools, only one means of access is required, but it must have the appropriate lift or at least a sloped entry.
Many community associations in the Washington region have swimming pools, and the question has been raised by board members and property managers: Do we need to comply?
The answer: If your association is a “public accommodation,” it must comply with all aspects of ADA, including the pool requirements.
What is a public accommodation? The ADA law itself defines it as a private entity whose operations affect commerce and fall within one of 12 categories. Three of those could place an association under the scope of the act: places of public gathering, places of recreation and places of exercise.
In general, association attorneys have been advising their clients that the ADA does not apply. Case law throughout the country has confirmed that residential dwellings — such as a single-family home, an apartment complex or a community association — are outside the scope of the ADA. According to one judge, whether a particular facility is public turns on whether it is open “indiscriminately to other members of the general public.”
However, when an association begins to operate as if it were a public accommodation, then clearly the swimming pool requirements would apply. For example:
●If the association sells memberships to the swimming pool;
●If the association allows swim competitions to be held in its pool;
●If the association is functioning as a hotel (often called a “condotel”). This is a complex issue facing many associations, especially those in Ocean City, Virginia Beach and Rehoboth Beach.
A condotel is defined as a project that is operated as a hotel with a registration desk, full-service operations, daily cleaning service and even a restaurant. Property owners have the option (although in some situations the requirement) to put their unit into the rental program. Typically, the property manager shares the rent with the property owner.
However, if the owners pay a rental fee to a property manager, the rentals are for a minimum of a week or more (rather than daily) and the units are cleaned only after the tenants leave, it does not resemble a hotel, and the association does not become a “public accommodation” that must comply with the ADA.
The Justice Department has enforcement authority and has settled numerous matters with suspected ADA violators. (For additional information, go to www.ada.gov.)
Just because the ADA may not apply does not give associations carte blanche to discriminate against disabled persons. They are still obligated to comply with the Fair Housing Act, which prohibits discrimination in housing (including community associations) based on race, color, religion, sex, national origin, familial status and disability.
Once again, the Justice Department, in cooperation with the Department of Housing and Urban Development, regulates and enforces that act. In the document “The Fair Housing Act Design Manual,” community associations are advised that they are required to ensure “accessible routes” to common-use space, such as a pool.
Typically, under the act, an association may not prevent an owner or resident from bringing his own equipment — such as a portable pool lift — to the pool area, as long as it does not present a hazard to other guests and provided that the owner removes it from the pool when not in use.
But what if the disabled person asks the association to provide the pool lift? The law requires associations to provide “reasonable accommodations.” Does that mean that the association has to pay for the equipment? This is an open question with the Justice Department and HUD. In most cases in which complaints have been filed with HUD, the association was required to comply, but the complainant was required to pay for the modification or equipment. But in other cases, the association was required to pay.
It should be noted that the Justice Department enforces ADA by fines after a complaint or by a lawsuit filed by a private citizen. If there is a complaint, it must be answered, which can cost the association a lot in legal fees. In some cases — depending on the terms of the insurance contract — the association’s directors and officer’s policy may cover the cost of the litigation.
If your association has a pool and you have questions as to whether you have to comply with the rules, discuss this with your association legal counsel. I have also found that most companies that manage pools have licensed professionals who are familiar with this issue and can help.
Benny L. Kass is a Washington lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. For a free copy of the booklet “A Guide to Settlement on Your New Home,” send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.