Unlike the Fair Housing Amendments Act (FHAA) the Americans with Disabilities Act (“ADA”) applies to “places of public accommodation” and not to private property, such as an HOA swimming pool. However, certain circumstances may exist that transform private facilities into public facilities and bring a private community under the purview of the ADA. Take the below tests to see if your community pool is subject to ADA requirements.
Test #1
Can the general public enter your pool facility by walking up and paying a fee?
□ Yes □ No
Does your association sell pool or spa memberships to the general public?
□ Yes □ No
Does your association rent its pool facilities, for example a pool clubhouse, to the general public?
□ Yes □ No
Test #2
Are swim meets conducted at your association’s pool facilities?
□ Yes □ No
Does your association offer use of its pool facilities to a neighboring association under a shared use agreement?
□ Yes □ No
Does your association contain timeshare or “condo-tel” rental units?
□ Yes □ No
Answer Key
If your answer to any of the questions in Test #1 was YES, your association’s pool or spa facilities would be considered a “place of public accommodation” under the ADA regulations and must comply with the new ADA pool accessibility standards. If you answered NO to all Test #1 questions, and your pool is reserved for the use of members and their guests only, your association will not be required to comply with the ADA standards.
If your answer to any of the questions in Test #2 was YES, the answer is not quite as clear. Depending upon a number of other factors, by making its pool or spa facilities available to non-members your association may have to comply with the ADA standards. Those factors include whether you make revenue or “affect commerce” through charging rent or otherwise deriving funds from the non-members’ use. Another factor may be the relationship between the neighboring associations, if any, and whether the association’s governing documents address the shared use. In the swim meet example, the composition of the swim team members, the swim league participants, and whether concessions are sold at meets can all factor in to the equation. A factor with regard to timeshare or condo-tel situations is whether the association’s operations resemble a hotel or other public lodging.
As you can see, there are many considerations to take into account when analyzing whether the ADA regulations apply under the Test #2 situations. If your association has a situation resembling anything under Test #2, we recommend that you consult with your legal counsel. However, you should keep in mind that the Department of Justice will tend to broadly construe these new regulations. Thus, from a cautious viewpoint there is a likelihood that your association’s facilities will be considered a “place of public accommodation” and will have to comply with the ADA pool accessibility standards.
Deadline For Compliance
For associations whose pool or spa facilities will be considered “places of public accommodation”, there are generally three phases of compliance:
- Compliance is “highly encouraged” immediately for all such facilities regardless of any new construction or alteration;
- Compliance is required if new construction/alteration commences prior to March 15, 2012, and thereafter;
- Compliance is effectively required as of March 15, 2012, and after, for all such facilities regardless of whether there is any construction/alteration.
It should be pointed out that there is a potential exclusion available for associations that can prove that the required accessibility modifications are not “readily achievable.” However, given the availability, relatively low cost and flexibility of portable pool lifts, it can be anticipated that attempts to invoke the exclusion will fail.
How to Comply and More Information
In order to comply, one or more acceptable means of access to your association’s pool or spa must be provided. These include lifts, sloped entries, transfer walls, and accessible pool stairs. It is not within the scope of this article to get into the specific details of these acceptable means of access. Further, it depends greatly upon the existing configuration of your facilities. As such, we recommend discussing the specifics of compliance with an engineer or qualified pool professional.
There are several helpful resources available on the web regarding the subject of ADA pool accessibility standards. We recently attended a pool lift demonstration and discovered that your association’s particular pool or spa measurements and other specifications can be entered into an application on this website. The company’s engineers will review your entry and provide recommendations for compliance options. The same website also contains a wealth of information on the ADA standards.
You can also view the applicable regulations, standards and comments thereto at www.ADA.gov.
