Senate Bill Battles ADA

A Senate bill has been introduced to prevent the Americans with Disabilities Act from being enforced on commercial pools and spas.

S. 2186 was introduced by Senator Jim DeMint (R-S.C.) on March 12. If passed, it would prohibit any official of the federal government, including the U.S. Attorney General, from enforcing the law with respect to public pools and spas.

“[The ADA for pools and spas] is another one-size-fits-all, big-government mandate that could have a negative impact on Americans,” DeMint said in a statement. “It could lead to increased litigation and heavy fines that could force pools to close or raise fees on families. Pools with public access should have the flexibility to work directly with people with disabilities to accommodate their needs.”

The ADA originally passed in 1990. In 2010, the U.S. Department of Justice released the Standards for Accessible Design, which specified how the law should be implemented in many arenas, including public pools and spas. A sloped entry or lift is required on most public pools, with a second means of access needed on those measuring more than 300 perimeter feet. Spas must have a lift, transfer wall or transfer system. Lifts have been the most popular choice because of their cost and the relative ease of adding them.

With the March 15 deadline for retrofitting existing pools and spas now here, time is of the essence. A DeMint staffer said that the senator will fight to gain floor consideration this week but that, with Democrat Harry Reid in charge, there is no guarantee of a vote.

It is speculated that the bill comes as a result of concerted efforts by organizations from several industries, including the pool and spa, waterpark, and hotel/motel fields. Officials from these groups tried to convince the DOJ to allow portable lifts, but the agency refused, saying that fixed lifts must be installed unless facility operators can show that doing so would not be “readily achievable” or would impose an undue burden. The Agency did not define those terms, but said lifts must be ready for use whenever the vessel is available to the public. Additionally, the DOJ said facilities cannot use a single lift to serve both a pool and spa.

Organizations and their members then reached out to Congressional representatives, hoping to enact change from a different avenue.

Though many pool and spa professionals believe some relief is needed, some question this bill’s strategy, saying they weren’t looking to completely exempt pools and spas from the ADA. “We support accessibility for people with disabilities to pools and spas,” said Steven Getzoff, legal counsel for the Association of Pool & Spa Professionals and an attorney with Lester Schwab Katz & Dwyer, LLP in New York. “We think that the Department of Justice’s most recent technical assistance document requires some adjustment... but we’re not suggesting we throw everything out with it. I think we fix it rather than throw it out.”

Some also question the potential effectiveness of the bill. While it would prohibit the DOJ from enforcing the accessibility standard, they believe it doesn’t address the true threats. “There was never a real possibility of DOJ enforcement — it said it was going to be complaint-driven,” said John Cox, service manager for Sparkling Pool Services Inc. in Windsor, N.J. “But the bigger problem is the states, in particular New Jersey, [that are] now enforcing this.”

He added that, because the bill doesn’t strike pool- and spa-related language from ADA standard itself, the door likely remains open for lawsuits. “We’re not worried about the DOJ knocking on our door saying, ‘You’ve got to close down your pools and spas,’” Cox said. “We’re worried about the guy who all of a sudden wants to introduce a class-action lawsuit against the Hilton.”

But others see limited options for changing the status quo. “Our attorney is still analyzing the bill, but we appreciate Senator DeMint’s effort to jump in on this,” said Kevin Maher, senior vice president for governmental affairs for the Washington, D.C.-based American Hotel and Lodging Association. “If the Department of Justice isn’t going to show any flexibility on this, we’re going to support any efforts to force DOJ to do that.”

But there is one thing people agree on — the bill is a long shot. Not only is there a Democratic majority in the Senate, but it’s an election year, meaning Congress will likely adjourn early, leaving less time for the business of legislating. “It’s a very limited window for Congress to consider any legislation,” Maher said. “They have a lot of things that they have to do, like appropriations bills, that are going to take a lot of time.

“It’s a fairly troubled and dysfunctional Congress at this point,” he added. “[So] any legislation is a difficult road to pass.”
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