By Minh N. Vu
In yet another installment of the pool lift saga that has gripped the lodging industry and other businesses with pools and spas these past five months, the Justice Department (DOJ) issued a new Q&A on May 24 that purports to clarify the obligation of hotels and other public accommodations to provide accessible entries into swimming pools and spas. This Q&A follows an announcement DOJ made the previous week extending the deadline for existing pools and spas to become compliant with new accessible entry requirements to January 31, 2013.
Enforcement Exemption for pre-March 15, 2012 Portable Lifts. The “news” from the Q&A is that DOJ will exercise its “prosecutorial discretion” to not enforce the fixed lift requirement against a business that already purchased a compliant portable pool lift prior to March 15, 2012, as long as the lift is ready for use next to the pool or spa whenever the facilities are open. Interestingly, the Q&A seems to suggest that DOJ will not require the owners of these pre-March 15, 2012 portable lifts to affix their lifts to the pool deck or apron even if it is or later becomes readily achievable to do so.
While many businesses will welcome this surprising exercise of prosecutorial discretion by DOJ, private plaintiffs still have an independent right to enforce the ADA through lawsuits. Furthermore, many states, including California, consider violations of the ADA to be violations of their own non-discrimination statutes. Thus, it is unclear whether DOJ refraining from enforcing the requirement against pre-March 15, 2012 portable lift owners has any impact on the ability of private plaintiffs to enforce the new “fixed” lift requirement through a lawsuit.
Defining the Term “Fixed” Lift. The Q&A defines a “fixed” lift as one that is “attached to the pool deck or apron in some way.” It states that “[a] non-fixed lift means that [the lift] is not attached in any way.” The Q&A further states that “a portable lift that is attached to the pool deck would be considered a fixed lift,” and notes that some manufacturers have come out with kits that allow their portable lifts to be attached to the deck.
Lifts Must be Fixed Unless Not Readily Achievable. The Q&A says that if it is not readily achievable to provide a fixed lift, a business can provide a portable lift but must affix it when it becomes readily achievable to so. The problem with this ongoing obligation is that some portable lifts cannot just be “attached” to the pool deck at some later date because of their design, so any business considering the purchase of a fixed lift as an interim measure should consider this issue carefully.
What is “Readily Achievable”? DOJ reiterates in the Q&A that the “readily achievable” analysis is “flexible” and does not require actions that are “too expensive or too difficult.” We still have no idea what that means for any particular business because the Q&A provides no concrete examples. The Q&A does state that the resources of a franchisor should not be considered in determining if installing a fixed lift is “readily achievable” for a franchisee. Those involved with franchising would consider this to be a statement of the obvious but it is nonetheless helpful because some litigants and even DOJ want to ignore the fact that franchisees and franchisors are independent parties whose only connection is a franchise licensing agreement.
Lift Must Be Out In Position for Use When the Facilities Are Open. The Q&A states repeatedly that the lift must always be out ready to be used when the pool or spa is open. This has caused much dismay among hotel owners and operators who fear that children and others will misuse the lift and become injured, particularly at unattended pools. The Q&A addresses this concern directly by stating that legitimate safety considerations are a part of the “readily achievable” analysis but that they cannot be based on “speculation.” This seems to leave open the possibility that if a hotel has experience with children or others playing with or misusing lifts in an unsafe manner, that hotel might have a basis for putting the lift away and only bringing it out upon request. We can’t see DOJ telling a judge that a pool lift must be left out at an unattended pool after a child suffers a serious injury jumping off that pool lift. It is unfortunate, however, that this implies that a serious incident would have to occur before the hotel would have the basis to prevent future accidents.
Pool Lifts Cannot be Shared Among Pools or Spas. The Q&A states that a pool lift cannot serve more than one pool or spa, citing safety concerns. If further states that if it is not readily achievable for a business to have a lift at both a pool and a spa, the business does not have to close the facility that does not have the lift. The business will have to purchase a lift for that second body of water when it becomes readily achievable to do so.
Final Note. DOJ says it will be providing more technical assistance to help businesses comply but we suspect that the Q&A represents the final state of this Administration’s evolution on this issue. Although the pool lift requirement still imposes a significant burden on many businesses, we have come a long way from March 9, 2012, when Assistant Attorney General Perez told the hotel industry that there would be no extension of the March 15, 2012 compliance deadline and no change to the fixed lift requirement.