Wednesday, March 14, 2012

Dispelling the Myths About Pool Lifts

Walter Olson has a post on Cato @ Liberty about the pool lifts controversy.  Olson repeats the line being pushed by the hotel industry that any hotel with a swimming pool that doesn't have a permanent lift by this Sunday will have to either close the pool or face possible civil penalties or cash settlements.  He blames me for this result, so let me just say this:  Owners of existing pools won't have to face the choice of installing expensive lifts or paying civil penalties or cash settlements.  The hotel industry's suggestion that they will rests on an alarmist misreading of the statute and regulations.

A couple of points are important to keep in mind here.  First, the ADA and the new regs make clear that existing pools have to satisfy the new pool lift standards only if doing so is "readily achievable" -- a term the statute defines as "easily accomplishable and able to be carried out without much difficulty or expense."  In other words, if it is too hard or to expensive to put a lift in an existing pool, the law doesn't require it -- which means that there is no possibility of civil penalties.  And the statute explicitly requires courts to take account of the size and financial resources of the business in determining what is readily achievable -- which means that small, family-owned hotels are especially unlikely to have to install new lifts in their existing pools.

Moreover, there is essentially no chance that the Justice Department -- which is the only plaintiff that can recover civil penalties or money damages in an ADA suit against a place of public accommodations -- will bring suits to challenge the failure to install lifts in existing pools in the near future.  The primary focus of DOJ's enforcement of new ADA standards has always been education and technical assistance to promote voluntary compliance.  It is only when this process has failed that the Department has brought lawsuits against businesses.

Walter brings up the possibility of private lawsuits.  But private plaintiffs are not entitled to money damages in lawsuits challenging inaccessible public accommodations -- so the idea that, as Walter says, "budget hostelries are expected to simply shutter their pools until further notice rather than take the risk that entrepreneurial fast-buck artists will begin filing complaints against them for cash settlements," makes little sense.  You never know what cases individual private plaintiffs will file, but it sure wouldn't make sense for them to file ADA lawsuits challenging the failure to install expensive lifts in existing pools, because those cases are unlikely to prevail -- especially against small "budget hostelries" -- and private plaintiffs can't recover money damages in these cases even if they do prevail.  You can expect the hotel industry will fight any such lawsuits vigorously, and small hotels will have little incentive to pay cash settlements just to make the cases go away.

Finally, I should note that this is not something that the Obama Administration just rammed through.  The hotel industry has known about this issue for a decade.  The Access Board first issued pool lift standards in its accessibility guidelines for recreation facilities issued in 2002 -- i.e., during the Bush Administration.  Also during the Bush Administration, the Access Board incorporated those standards into its 2004 ADA Accessibility Guidelines.  The pool lift standards of the 2010 ADA regulations come directly from those 2004 guidelines.  And the hotel industry has had 18 months since the promulgation of the 2010 regulations to prepare for the pool lift standards to go into effect this month.

If it's cheap and easy for a hotel owner to install a lift in an existing pool, the owner should do so -- and has had 18 months to get ready to do so.  But if it's not readily achievable -- because the lift is too expensive, the construction task is too difficult, or the business is too small and cash-strapped -- then the hotel doesn't have to install a pool lift.  And there's simply no reason why a hotel should close its pools out of the fear of paying penalties or cash settlements under the ADA.

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