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By: Roy Helsing 

Now that the warm weather and summer are quickly approaching, our association clients are asking whether they need to install pool lifts within their swimming pools to ensure ADA compliance for HOA pools.

The short answer is that your association does not have to worry about the pool lift requirement if its pool is not open to the general public and therefore is not a place of public accommodation subject to Title III of the ADA. However, if your association’s pool is open to the public for rental or use, it is subject to the ADA pool lift requirement to ensure ADA compliance for HOA pools.

Starting January 31, 2013, all public swimming pools, wading pools, and spas must be equipped with fixed pool lifts according to the ADA’s 2010 Standards for Accessible Design (“2010 Standards”). The cost of installing and maintaining an ADA pool lift is minimal compared to non-compliance fines, which can reach $55,000.

The 2010 Standards and the California Building Code (“CBC”) require that newly constructed or altered public pools have accessible means of entrance and exit for those with disabilities. Unlike the CBC, the Department of Justice (“DOJ”) imposes an ongoing obligation to install a pool lift for an existing public pool, even if no new construction or alteration is proposed. The Department of Justice (“DOJ”) recognizes the challenge this presents and requires an existing pool to come into compliance “to the extent that it is readily achievable to do so.” This means that your association would need to find out how much the lift would cost and explain why it would be so difficult and/or expensive that it would be unreasonable for your association to do it. Determining what is “readily achievable” will vary from association to association and sometimes from one year to the next. Changing economic conditions can be taken into consideration in determining what is readily achievable. Determining if barrier removal is “readily achievable” is, by necessity, a case-by-case judgment. Factors to consider include, among other items: (1) the action’s nature and cost; (2) your association’s financial resources; (3) the number of persons employed by your association; (4) the effect on expenses and resources; and (5) legitimate safety requirements necessary for safe operation.

Keep in mind that though you may think that ADA compliance for HOA pools and installing a pool lift and making pool facilities such as bathrooms and showers ADA-compliant are not “readily achievable,” that does not end the inquiry, because the DOJ may disagree. Taxpayers fund the DOJ. If the DOJ fines your association or files an enforcement action against it, it will have to spend money to defend itself. Further, an administrative law judge or a court may disagree with your association as to whether the accommodations are “readily achievable.” If your association wins the lawsuit, it will have paid its own attorneys’ fees. If it loses, your association will pay its own fees, the plaintiff’s attorneys’ fees, the cost of installing a fixed pool lift, and possibly a civil penalty.

If providing a fixed pool lift is not “readily achievable,” your association should rent a portable pool lift and budget for making its pool and bathroom facilities ADA-compliant. It benefits the aging population of owners and, in the long run, is less expensive than litigation. Therefore, to limit your financial risk, the best course of action would be to acquire or rent a fixed pool lift and to make the pool’s appurtenant toilets and showers ADA-compliant immediately. If you really cannot do so, the second best alternative would be to budget for and to make the pools, toilets and showers ADA-compliant as funds are received.

It is important to note that the barrier removal obligation is a continuing one, and your association is expected to take steps to improve accessibility over time. When selecting equipment, your association should factor in the staff and financial resources needed to keep the pool equipment available and in working condition.

There are tax credits or deductions available for ADA compliance for HOA pools. The Internal Revenue Service (“IRS”) has allowed small businesses to claim the Disabled Access Credit IF they meet one of the following criteria:

• Had revenues equaling less than $1,000,000 for the previous tax year; or

• Have 30 or fewer full-time employees.

The credit applies only to architectural adaptations and equipment acquisitions for existing facilities. To apply, you must fill out the Disabled Access Credit form (IRS Form 8826) and provide appropriate documentation in your tax return. Please speak with your accountant or qualified tax preparer for more information on how to take advantage of this benefit.

Copyright 2013

The Law Offices of Ann Rankin

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