"Title II & Title III of the ADA" by Robert Finer- Adapted Aquatics Conference 2012


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"Title II & Title III of the ADA" by Robert Finer- Adapted Aquatics Conference 2012

  1. 1. TITLE II AND TITLE IIIOF THE ADANEW REGULATIONS FOR POOLSContact: Robert S. Fine, Esq., AIA  Shareholder  May 1, 2012GREENBERG TRAURIG, LLP  ATTORNEYS AT LAW  WWW.GTLAW.COM©2011. All rights reserved.
  2. 2. What is the ADA? The ADA is the acronym for the Americans with Disabilities Act of 1990 as amended in 2008.
  3. 3. What does the ADA do? The ADA provides protections for persons with disabilities from being discriminated against based on their disability. The mandate of the ADA is to provide “equal access,” not necessarily affirmative access or action.
  4. 4. What constitutes a disability under theADA? Under the ADA and similar laws, a disability is a physical or mental impairment that significantly limits one or more major life activities.A person with a disability is a person who… has such an impairment; has a record of such an impairment; or is regarded as having such an impairment
  5. 5. The phrase physical of mentalimpairment means… Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; Four bullets on each page work best Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities; The phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism;
  6. 6. The phrase major life activities means… functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.Mitigating measures (measures that alleviate the symptoms of the impairment) do not take a person with a disability out of the protective umbrella of the ADA.
  7. 7. Title II Entity Title II of the ADA covers programs of state and local governments □ New construction or alterations must meet the applicable architectural standards □ Facilities in existence prior to 1992 may utilize program accessibility  The program, when viewed in its entirety, must be accessible – Not every one of each type of facility must necessarily be accessible.
  8. 8. Title II Entities Factors to determine which pools must be made accessible: □ How to provide swimming programs in the most integrated setting appropriate; □ The ways in which people participate in the programs (e.g., individually, in families, in youth groups); □ Locations where the programs are offered; □ What programs are offered at each pool and to which constituencies (e.g., family swims, childrens swimming lessons, older adult exercise classes, high school swim meets); □ Which pools are accessible and to what extent; and □ Level of dispersion of the accessible locations and convenience to reach them (e.g., one pool in each quadrant of the town, all on accessible mass transit).
  9. 9. Title III Entities Title III covers places of public accommodation and commercial facilities □ Includes  Places of lodging including hotels, motels  Stadiums or other place of exhibition or entertainment  Gymnasium, health spa or other place of exercise or recreation
  10. 10. Title III Entities Construction standards □ New construction □ Alterations □ Removal of barriers (existing facilities)  Readily achievable hardship standard
  11. 11. Title III Entities Readily achievable means easily accomplishable and able to be carried out without much difficulty of expense. □ Factors to determine if readily achievable  Cost of construction  Difficulty of construction  Health and safety considerations  Effect on revenues  Impact on operations
  12. 12. Title III Entities In determining whether an action is readily achievable, must consider: □ The nature and cost of the action needed □ The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site; □ The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity; □ If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and □ If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.
  13. 13. 2010 ADA Standards for Accessible Pools Original compliance date was March 15, 2012 Emergency rule (covering existing pools only) extended that by 60 days Current rulemaking in process which may extend compliance date to mid-September, after Labor Day □ Large number of pools closed between Labor Day and Memorial Day  (Free pass for many pools for one more season?)
  14. 14. Design Standards for Pools At least two accessible means of entry shall be provided for swimming pools. Accessible means of entry shall be swimming pool lifts complying with 1009.2; sloped entries complying with 1009.3; transfer walls complying with 1009.4; transfer systems complying with 1009.5; and pool stairs complying with 1009.6. At least one accessible means of entry provided shall comply with 1009.2 or 1009.3. [Swimming pool lifts or sloped entry]
  15. 15. Design Standards for Pools EXCEPTIONS: □ Where a swimming pool has less than 300 linear feet (91 m) of swimming pool wall, no more than one accessible means of entry shall be required provided that the accessible means of entry is a swimming pool lift complying with 1009.2 or sloped entry complying with 1009.3. □ Wave action pools, leisure rivers, sand bottom pools, and other pools where user access is limited to one area shall not be required to provide more than one accessible means of entry provided that the accessible means of entry is a swimming pool lift complying with 1009.2, a sloped entry complying with 1009.3, or a transfer system complying with 1009.5. □ Catch pools shall not be required to provide an accessible means of entry provided that the catch pool edge is on an accessible route.
  16. 16. Design Standards for Pools Wading Pools. At least one accessible means of entry shall be provided for wading pools. Accessible means of entry shall comply with sloped entries complying with 1009.3. Spas. At least one accessible means of entry shall be provided for spas. Accessible means of entry shall comply with swimming pool lifts complying with 1009.2; transfer walls complying with 1009.4; or transfer systems complying with 1009.5. EXCEPTION: Where spas are provided in a cluster, no more than 5 percent, but no fewer than one, spa in each cluster shall be required to comply with 242.4.
  17. 17. State Administrative Requirements True health and safety standards may be taken into consideration in R.A. analysis □ Guidance from Florida Department of Health:  Note that the ADA requires 12 inches from the pool to the centerline of the lift and 36 inches behind the lift. This results in approximately 5 feet of required decking.  Additionally, Florida rule 64E-9 requires 4 feet unobstructed decking width around the perimeter of the pool. Therefore, for an existing pool with 4 feet of unobstructed decking, two additional feet will be needed to be added at the time of lift installation. The additional decking can be poured concrete, pavers, or other similar material however must be non- absorbent and slip resistant. □ Also must consider electrical bonding requirements when installing lift to deck.