If you head to your local health club, spa, recreation center, or YMCA looking to take a refreshing dip in the pool or whirlpool today, you might be in for a surprise. If you are out on the road and staying in a hotel and want to visit the whirlpool, hot tub or swimming pool after a long trip and day at work, you might be in for a surprise.
The pool, whirlpool, spa, or hot tub may be closed.
Today new regulations for access to pools, spas, etc., under the American With Disabilities Act (ADA) take effect. The regulations require owners to have a wheelchair lift in order for disabled and wheelchair bound individuals to be able to use the facilities.
Although we think this is somewhat ridiculous, we understand that this is part of the ADA. Like it or not, the law requires equal access to facilities. The Department of Justice makes the rules for determining what “access” is as well as the technical requirements an owner or operator of a business or public facility must follow.
Following the technical guidelines is not optional. Building codes are set in stone. There is no issue as to costs or what people like to call “reasonable accommodations.” The law is the law and that is it.
At the beginning of the year, facility operators and owners asked for clarification for the new DOJ guidelines. At issue was whether the regulations required a lift for each “water feature,” or could the facilities use a portable life and move it from water feature to water feature.
In this economy, you would think the best answer would be to allow the facilities to have a portable life, which costs anywhere from $3000 – $10,000 dollars.
And of course, you would be wrong.
On January 31, 2012, the DOJ issued a clarification that each type of water feature must have a lift. This means that if there is one pool and two spas, the facility has to have a permanently installed lift for the pool and but only one permanently installed lift for the spas. The DOJ clarification requiring the lifts be permanently installed will be expensive as each installation can run anywhere from $5,000 to $10,000.
This means that each of the 300,000 pools now have an added expense of $6,000 to $20,000. That doesn’t include spa, whirlpools, etc., and it doesn’t mean there are enough lifts in the country to fill the demand. There aren’t.
Clearly allowing a portable lift for each facility will still allow access for the disabled as well as save costs for the businesses. That is the simple solution, one in which the hotel industry believes:
“Everybody is committed to buying a portable pool lift. That is not in dispute,” said Best Western CEO David Kong. “The challenge is, why does it need to be permanent?”
Starting today, “water features” will be required to have the permanent lifts or face claims under the ADA.
In a typical “conciliatory non-conciliatory” move, the Obama DOJ has indicated they won’t pursue penalties at this time. See how reasonable they are being?
It doesn’t matter.
Under the ADA, individuals can sue the establishments for a violation of the ADA. It doesn’t take the government to do anything. Hoards of lawyers will be celebrating today as they look for pools and water facilities that don’t comply with the new, overreaching and burdensome regulations.
“The enforcement is going to be by litigation,” said Kevin Maher, senior vice president of governmental affairs for the American Hotel & Lodging Association. “A lot of drive-by lawsuits against business by law firms that are set up file to file spurious ADA claims.”
These firms “often file lawsuits against every business in the community. A lot of times they are not even looking for businesses to comply with the ADA, they are just looking for a quick cash settlement to go away,” Maher explained.
How much can those lawsuits bring?
Hoteliers must have pool lifts to provide disabled people equal access to pools and whirlpools, or at least have a plan in place to acquire a lift. If they don’t, they face possible civil penalties of as much as $55,000.
The state of this situation is that pools can close or face massive lawsuits.
This is a truly bi-partisan screw-up. Despite protests from business owners for years over the constantly changing and costly regulations – regulations which seem to be more interested in penalizing businesses rather than resolving issues – neither Republicans nor Democrats are willing to say “enough is enough. We need to revisit this law.” This is because no one in Congress wants to be seen as doing anything that can be perceived as an attack on the disabled.
Walter Olson of the of the CATO Institute also points out that the direction and guidelines are often “contracted out” to third parties. This means the regulations are being made by someone who is not only not elected or appointed, but essentially a non-accountable contractor:
In the pool case, the federal appointee in charge (according to this blog post) was Samuel Bagenstos, who after his stint in the Obama Justice Department has now returned to legal academia, where he is perhaps the leading proponent of expansive ADA interpretation. (His view of abusive ADA suits — he puts the term “abusive” in quotation marks — is here.) Academia’s other best-known advocate of an expansively interpreted ADA (and a drafter of the law) is Chai Feldblum of Georgetown Law, who serves the Obama administration as head of the Equal Employment Opportunity Commission.
But Olson disagrees with Conn Carroll of the Washington Examiner who thinks the believes the ridiculous requirement of a lift for each water feature may be viewed in another light:
Besides being expensive and impossible to install in time, permanent lifts are also a health hazard. Most hotel pools do not have a lifeguard and kids can access them unsupervised.
The permanent lifts will be a magnet for children to play on, and because they are not designed for that, odds are good that some will get hurt. But then again, each injured kid is just another payday for trial attorneys.
By the way, trial lawyers gave President Obama more than $45 million in 2008.
The truth may lie somewhere in between. It may be true the regulation is not a payback to trial lawyers for their support of Obama. At the same time, the DOJ has the ability to move the compliance deadline to allow facility operators and owners to seek remedies against the regulations or even decide to comply with them. As no such extension is forthcoming, one can say the only people who greatly benefit monetarily from the requirement of permanent lifts are the trial lawyers. In other words, it may not have been the intention of the rule to reward a group that supported Obama, but neither is the administration doing anything to prevent a reward from being thrown in the direction of the trial lawyers.
In the end, you have another attack on businesses by this administration. According to the Heritage Foundation, rules signed into law by the Obama administration cost businesses and the American people $46 billion dollars annually a year, plus a one time cost of $11 billion to implement those rules.
Is it any wonder Obama is seen as the least business friendly president that anyone can remember?