HospitalityLawyer.com | Stephen Barth in Lodging Hospitality Magazine Article | Understanding the Pool Lift Issue
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HospitalityLawyer.com | Stephen Barth in Lodging Hospitality Magazine Article | Understanding the Pool Lift Issue

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Despite the Department of Justice’s May 24 clarification and the looming Jan. 31 deadline for the installation of fixed pool lifts to existing pools, the hotel industry remains largely quiet on the ...

Despite the Department of Justice’s May 24 clarification and the looming Jan. 31 deadline for the installation of fixed pool lifts to existing pools, the hotel industry remains largely quiet on the issue. Two of the largest lift manufacturers say orders came to a halt early this year, and they’re only now starting to pick up again. And most hotel owners, management companies and franchisors declined comment on this suddenly hot-button issue, citing either a lack of knowledge or fear of becoming a target.

The dispute came to a head in July when a coalition of disability rights organizations launched a national boycott and awareness campaign against the hotels and chains represented on the boards of the American Hotel & Lodging Association and the Asian American Hotel Owners Association, the industry’s leading lobbying groups. The AH&LA says it is working to educate its members on the law and how to comply, but it also hopes to keep educating Congress and the DOJ on its position that portable lifts would be a better solution.

It’s the latter part that has disability rights advocates up in arms. They see the continued resistance and legislative efforts to change the law or to limit the DOJ’s abilities to enforce the law as an effort to roll back the 1990 Americans With Disabilities Act.

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HospitalityLawyer.com | Stephen Barth in Lodging Hospitality Magazine Article | Understanding the Pool Lift Issue HospitalityLawyer.com | Stephen Barth in Lodging Hospitality Magazine Article | Understanding the Pool Lift Issue Document Transcript

  • Understanding the Pool Lift IssueSep 5, 2012 12:23 AM, By Eric StoesselFixed Position: DOJ has clarified pool lift requirements, but hoteliers still unsure how to proceed (http://www.addthis.com/bookmark.php)Led by the American Association of People with Disabilities, ADAPT, theNational Council on Independent Living, and the National Disability RightsNetwork, disability activists protested outside the AH&LAs headquarters inWashington D.C. on Thursday, June 14.Despite the Department of Justice’s May 24 clarification and the looming Jan. 31 deadline for theinstallation of fixed pool lifts to existing pools, the hotel industry remains largely quiet on theissue. Two of the largest lift manufacturers say orders came to a halt early this year, and they’reonly now starting to pick up again. And most hotel owners, management companies andfranchisors declined comment on this suddenly hot-button issue, citing either a lack ofknowledge or fear of becoming a target.The dispute came to a head in July when a coalition of disability rights organizations launched anational boycott and awareness campaign against the hotels and chains represented on the boardsof the American Hotel & Lodging Association and the Asian American Hotel OwnersAssociation, the industry’s leading lobbying groups. The AH&LA says it is working to educateits members on the law and how to comply, but it also hopes to keep educating Congress and theDOJ on its position that portable lifts would be a better solution.It’s the latter part that has disability rights advocates up in arms. They see the continuedresistance and legislative efforts to change the law or to limit the DOJ’s abilities to enforce thelaw as an effort to roll back the 1990 Americans With Disabilities Act.
  • “This is way beyond lifts and access to pools,” says Bruce Darling, an organizer with ADAPT, anetwork of grassroots activists involved with the boycott, and also the CEO of the Center forDisability Rights. “The concern is the efforts by the hotel associations are to undercut the ADA,which would have ramifications that could open up the entire civil rights legislation.”The problem began when the DOJ published the “2010 Standards for Accessible Design,” whichfor the first time contained specific accessibility requirements for pools and spas. The means ofacceptable entry were left ambiguous, and many in the hotel and pool industries interpreted theADA update to allow the use of portable pool lifts, but that changed on Jan. 31 of this year. Twomonths prior to the original March 15 compliance date, the DOJ published revisions mandatingfixed lifts, meaning portable ones that could be rolled out on demand and shared fromneighboring pools and hot tubs were no longer acceptable.The lodging industry, led by the AH&LA and AAHOA, quickly responded and its lobbyingefforts, combined with a lack of supply of the suddenly in-demand permanent pool lifts, led to aninitial two-month delay and then the further clarifications in May and extension to Jan. 31. Butnow that the DOJ has made its position clear, the vast majority of hotel pools are still lacking therequired fixed lifts.“We want our members to know what the law says right now and it says you need to have somesort of fixed lift,” says Kevin Maher, SVP Government Affairs, AH&LA. “They should knowthat, take a look and make the determination if it is readily achievable to secure it and thenpurchase it and get one in place.”But, Maher says, “we still think portable lifts would meet everyone’s requirements, to the peoplewho need access and to hotels who do need to limit the risk.” The AH&LA believes fixed poollifts will become an “attractive nuisance” and a danger to children at pools mostly unattended bylifeguards, much like diving boards that were removed en mass by hotels two decades agobecause of those same liability concerns.“We’re not trying to weaken ADA,” Maher stresses. “We just want flexibility.”Understanding The LawThe 2010 Standards require existing pools at hotels to provide accessible entry and exit whenreadily achievable, through fixed pool lifts, sloped entries, transfer systems or accessible poolstairs. Larger pools (300 linear feet or more) require two forms of entry, and smaller pools andall hot tubs or spa features require their own lift. All newly constructed and altered pools need tobe built with these features. The original 2010 Standards include specific requirements for thelocation, size of the seat, lifting capacity and clear floor space needed.
  • The 90-degree Aqua Creek Ranger could work at90% of all hotel pools, estimates Richard Reyer, vicepresident of sales for Lodging Pool Lift Supply, adistributor of Aqua Creek products.On May 24, the DOJ published a comprehensive nine-page package titled, “Questions andAnswers: Accessibility Requirements for Existing Swimming Pools at Hotels and Other PublicAccommodations.” It states one of the DOJ’s “key goals is to emphasize the flexibility of thestandards for existing swimming pools,” and outlines three key points:1) The deadline for compliance was extended to Jan. 31, 2013.2) Under ADA, “there is no need to provide access to existing pools if doing so is not ‘readilyachievable.’ Providing access is not readily achievable if it would involve significant difficulty orexpense.”3) The DOJ “will not pursue enforcement of the fixed-lift requirements against those who havepurchased otherwise-compliant portable lifts before March 15 as long as they are kept in positionfor use at the pool and operational during all times the pool is open to guests.”The update changed the argument from permanent and portable to whether the lift is fixed,meaning if it is “attached to the pool deck or apron in some way,” the DOJ explains. Ownerswho bought portable lifts prior to March can comply with kits most manufacturers have nowcreated to overcome the challenge, or if not readily achievable, the portable ones can suffice.Lifts are only required if “readily achievable.” If they’re not, hoteliers won’t have to close theirpools, states the DOJ in the May Q&A: “If accessibility is not readily achievable, the Departmentrecommends that businesses develop a plan to provide access into the pool when it becomesreadily achievable in the future. Because accessibility in existing facilities is an ongoingobligation…”The ongoing obligation also means owners must make sure the lifts are properly maintained andin working order.‘Readily Achievable’Those two words and the concept of “readily achievable barrier removal” are key components, ifnot the crux, of the 1990 civil rights legislation and the current pool-lift issue.
  • “Sufficient direction with discretion is a hard thing to do,” says Stephen Barth of the readilyachievable tight rope. The founder of hospitalitylawyer.com and professor of hospitality law atthe Hilton College of Hotel and Restaurant Management at the University of Houston believesthe ADA is a “pretty business friendly” law that “enables you to make a subjective assessment ofwhether you as a business can afford to do this, whether the capital expenditure is an undueburden financially.”Proving a fixed pool lift would be a “significant difficulty or expense” is the challenge. Theintentionally gray area left open to interpretation could ultimately be judged by a court of law orthe DOJ if a lawsuit or complaint is filed.“This gray area is cause for a good 80% of the litigation,” says David Raizman, who specializesin disability access and employment law for Drinker Biddle & Reath LLP and often representshotel owners. “The grayness of the standard allows plaintiffs to bring lawsuits, and now(hoteliers) will have to pay to litigate the question under a gray standard.”Imagine a hotel owner, perhaps one overleveraged struggling to stay afloat after the historicdeclines in values and performance since 2007, who can’t afford to make the capitalimprovements mandated by their franchisor to keep the flag. If the owner documents theirinability to purchase and install the required lifts and makes specific plans to do so whenrevenues return and within a stated period of time, they should be clear of penalty, according tothe May 24 document:“In that case, installation is not required. If it is not readily achievable for a business to provide afixed lift — that is, if it would be too difficult or expensive to make these changes — then abusiness may use other ways, such as a non-fixed lift, to provide access to the pool. If it is notreadily achievable to provide access to the existing pool, even by way of a non-fixed lift, thebusiness need not do so. Nonetheless, it should make a plan to achieve compliance with the poolaccess requirements when doing so becomes readily achievable.”Both Barth and Raizman believe if legitimate reasons are properly documented, this hypotheticalhotel owner would be OK. The obligation is ongoing, though, so the owner would need to havespecific plans for when and how they’d become compliant in the future.The problem for the AH&LA and the industry is “readily achievable” is undefined and often leftup to individual judges, Maher says. Nothing is stopping someone from filing a complaint or alawsuit in that example, so even if an owner can prove installing a lift is not readily achievable,he or she may still have to spend the money to litigate the issue.Tax credits and deductions for barrier removal are available to business owners, which should befactored in to those arguing the cost is an undue burden and lifts aren’t readily achievable. Smallbusinesses with 30 or fewer employees can use the Disabled Access Credit for up to a $5,000credit, half the total eligible expenses. Businesses of all sizes can take advantage of a deductionup to $15,000 per year for removing barriers. Buying and installing pool lifts qualify for both.The Lifts“There’s a lot of misinformation out there” about the price of lifts, says Richard Reyer, vicepresident of sales for Lodging Pool Lift Supply. “The one huge misconception out there is peoplebelieve these are double the price of what they are.”He says the Aqua Creek line of fixed lifts he sells range in price from approximately $3,000 forthe 90-degree Ranger to $3,500 for the 360-degree Scout. Installation typically costs another
  • $1,000. Aqua Creek also makes an ADA compliant portable pool lift — the Patriot — whichReyer says retails for approximately $5,000 with the newly developed fixing kit.Bruce Giffin, national sales manager for Aqua Creek, says the lifts are easy and safe to use, andthe disabled community will have no trouble operating the equipment. Reyer says his deliveryand installation includes training for hotel staff on how to use and properly maintain the lifts.The prices of the lifts themselves aren’t all that onerous, but installation can be. Reyer says thoseinstances are few and far between. “The Ranger — which a good maintenance man might be ableto install or we could deliver and install for probably less than $4,000 — probably works in 90%of all pools and spas out there.” Add in the Scout, he says, and 98% of all properties would havereasonable options.Margaret McGrath, vice president of marketing for SR Smith, says the manufacturer of pool-deck equipment has a full line of ADA compliant lifts available from a network of distributorsranging in price from $3,000 up to $7,500 for the portable (that can be fixed) lift. She cautionsthe installation of permanent lifts could require professional help, and potentially up to $5,000more. It can involve complexities with electric code, bonding the equipment into the concretedeck and even require local permitting.ADA compliant lifts from SR Smith range in pricefrom $3,000 to $7,500.The portable lifts are slightly more expensive initially, but don’t come with the installation costsand complexities. They don’t have weight bearing anchors, Reyer explains, and can quickly beattached and removed. They weigh close to 1,000 pounds, but are on wheels and an averageperson could roll them in and out, Reyer says.After selling 400 to 500 lifts in January and February, Reyer says his phone stopped ringing inMarch after the first extension by the DOJ and only started ringing again in July. “It’s growingeach week,” he says of his sales. “They were at literally zero. The last thing anyone wanted tothink about during the summer months was lifts. I believe owners are focusing on this again.”Right now, McGrath and Giffin say order to delivery takes from days to weeks. If everyoneorders on Jan. 30, though, lifts could take months to ship. The DOJ’s May guidance states if acompliant lift is ordered and on back order, a hotel owner doesn’t have to close the pool andshould install the lift when it becomes available.
  • The DebatePortable lifts are now in fact acceptable, but not in the way the AH&LA would like. Lifts mustbe affixed to the pool at all times the pool or spa is open, and can’t be moved to other locationsas needed. They can be wheeled out and affixed during pool and spa hours and removed duringoff hours, though.“The federal government did a study on response time with portable lifts — and this is fromdisabled travelers — and the average response time was six minutes for portable lifts to be put inplace,” Maher says. “So we think that’s reasonable, and in addition, we suggested, therequirement is upon us and we can back that up. A hotel clerk could ask every guest when theycheck in if they’ll need a pool lift, and at that point the lift could be put in place. We could makethat a requirement, so we’re not singling anyone out, so there’s no embarrassment factor.”The AH&LA also contends permanent lifts, positioned in the shallow ends of pools, will createsafety hazards. Without lifeguards, no one will keep children from playing on the lifts and usingthem inappropriately. It’s the same reason hotels removed diving boards years ago, Maher says.“Just putting up signs doesn’t stop lawsuits,” he says. “Our position is if you have a portable lift,you can minimize that risk and provide access.”Kelly Buckland, executive director of the National Council on Independent Living and one of thegroups involved in the boycott, scoffs at that notion. “It’s an excuse and not a valid argument,”he says “I’m a father and wouldn’t leave a child unattended at a pool for any reason. The verynature of a pool is dangerous to children.”Larry Carraro, senior risk engineering consultant and hospitality industry practice leader forZurich Services Corporation, believes fixed pool lifts are similar to diving boards in that “the twotypes of people who will use them are children and intoxicated adults.” A.V. Riswadkar, liabilityline of business director for Zurich, says it will take time to see how safe these are, but “the riskis there.”“There’s always some exposure to hotels, but the more you have to show you took reasonablysafe steps to have a safe environment, from pool-use guidelines, adequate depth markings, nodiving signs, no unrestricted access, that all adds up and plays favorably in the defense of a suit,”Carraro says.SR Smith’s McGrath says she understands the concerns, but hasn’t seen any data showing thelifts are being used inappropriately and causing injuries. Giffin says since 2002 when Aqua Creekbegan making lifts, he’s heard of one injury, and it was caused by someone using the liftinappropriately. Locking lift covers are available and the batteries can be removed, he says, toprevent after-hours shenanigans.The DOJ states in the Q&A that businesses can “consider legitimate safety requirements indetermining whether an action is readily achievable.” However, “legitimate safety requirements”can’t be based on speculation or unsubstantiated generalizations, it adds. Jennifer Hatfield,government relations director for the Association of Pool and Spa Professionals, says herorganization has no data to prove or disprove the hotel industry’s concern.“People are falling in love with that attractive nuisance argument,” says Raizman. “Anyone withexperience in litigation recognizes the frailty of that defense” because of the lack of evidence.
  • The industry’s other argument is just as challenging. “Putting these lifts in to never be used —that’s the issue,” says Raizman. “There’s not a real proportionality in cost to put these in and theamount of use they get, but the job of the ADA is to make public accommodations accessible.”Disability rights advocates havelaunched a boycott and awarenesscampaign because of the hotelindustry’s continued efforts to fight thefixed pool-lift requirement.On top of that, he adds, it’s not a very good argument for the industry to make publically becauseit’s not very hospitable sounding.The DOJ hopes for voluntary compliance, but $55,000 fines can be levied for first-time offenses.Hotel owners will also be open to lawsuits come Feb. 1, from legitimately upset guests anddisability rights advocates, or of the “drive-by” variety that cropped up years ago, whenunscrupulous lawyers, plaintiffs and investigators looking to make a quick buck would sendthreatening letters or file lawsuits to take advantage of the ADA requirements.It’s hard to know what hoteliers are thinking now. Only one executive from 10 hotel ownershipor management groups queried responded to requests for an interview for this story.Bob Habeeb, president and COO of First Hospitality Group, says most of the 50 hotels hiscompany owns or operates had portable pool lifts before the 2010 Standards were published, andthose that didn’t, now do. The permanently fixed mandate “caught us by surprise,” he says,adding his concern is that fixed lifts could be safety hazards. “Most hotel pools are withoutlifeguards, so there’s huge exposure there.”Still, he adds, “When the smoke clears, we’ll be in compliance with the law of the land.”Marriott was the lone brand company of six surveyed to respond, and only with a brief statement,
  • that in part, read:“We are working diligently to install self-operable lifts in our pools and spas by the Jan. 31deadline as required by the new rules and have encouraged our franchisees to do the same.”There are still active bills in Congress to change the requirement or limit its enforcement, but theAH&LA believes those are unlikely to pass, says Maher, and instead is focused on reaching outto disability representatives to make its case for portable lifts. Those representatives believe theDOJ has made its final ruling, and don’t seem interested in listening.What Hotel Owners Should Do NowThe simplest solution for any hotel owner is to install fixed lifts at all pool and spa features byJan. 31, but that might be easier said than done. Experts first recommend assessing the propertyand pool features to see what is required. Most manufacturers and distributors offer forms andresources online to help analyze a hotel’s needs, and consultants specializing in ADA are alsoavailable for a price.“Start putting a plan together now,” says Brian Regal, founder of Confera OS(http://www.conferaos.com/) , a hospitality-focused construction project management firm. “Putyour own timeline on it, of when you’ll buy and install the lift and any other upgrades you plan,and allocate X amount of dollars every six months. Start making the upgrades now and spendinga little money to put your program to work.”Attorney David Raizman recommends to his clients a three-to-five year plan and then the key issticking to it: “Two years from now, if someone sues you because you don’t have a lift, you canshow you’ve done everything else and it was on the list, scheduled for January 2015, and I thinkthat would provide an excellent defense.”If owners are going to contend the cost makes lifts not readily achievable, they better be able tolegitimately prove it. “Create a paper trail of your thought process,” suggests attorney StephenBarth, including flow charts, your capital expenditure budget and all the bids you got for the liftsand their installation.Marian Vessels, director of the Mid-Atlantic ADA Center, says the DOJ could say “show meyour books” if an owner claims the costs are an undue burden. And she says it will ask if theavailable tax credits and deductions were considered.“I get the sense many lodging owners are unaware of that,” she says. Her center is one of 10regional ADA centers funded by a grant under the U.S. Department of Education that providesfree or low-cost training, information and technical assistance on the ADA to businesses,consumers, schools, and local and state governments.For those owners installing fixed lifts, Richard Reyer of Lodging Pool Lift Supply, says to makesure the lifts are ADA compliant and then make sure the installation is done properly.Online Resources• DOJ May 24 Q&A: www.ada.gov/qa_existingpools_titleIII.htm(http://www.ada.gov/qa_existingpools_titleIII.htm)
  • • American Hotel & Lodging Association: www.ahla.com/ (http://www.ahla.com/)• Association of Pool and Spa Professionals: www.apsp.org/ (http://www.apsp.org/)• ADA Hospitality: http://adahospitality.org/ (http://adahospitality.org/)• Tax credit and deductions: http://www.ada.gov/archive/taxpack.htm(http://www.ada.gov/archive/taxpack.htm)• Quick tips on tax incentives: www.adainfo.org/sites/adainfo.org/files/ADA-Quick-Tips-Tax-Incentives.pdf (http://www.adainfo.org/sites/adainfo.org/files/ADA-Quick-Tips-Tax-Incentives.pdf)ADA National Network: http://adata.org/ (http://adata.org/)Acceptable Use Policy (http://www.penton.com/Pages/AcceptableUsePolicy.aspx)0 comments 0 Stars Leave a message... Discussion Community No one has commented yet.