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I am an attorney practicing in Hartford, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Tuesday, January 15, 2013

New ADA Regs Proposed That Would Allow Temporary Lifts In Pools (Courtesy of Julie Mills)

Julie Mills, an attorney and blogger who writes about ADA issues in the hospitality industry, wrote a piece this week on HR 203 - a new bill that has been introduced in Congress that, if passed, would permit pools to use temporary lifts instead of incurring the expense and potential safety issues that arise from the ADA's current requirement for fixed lifts in most pools.  Julie does a nice job of summing up the issue so, with her permission, I've reprinted her piece below.  Julie's Blog, "The ADA:  Titles II and III," can be found here.  
(read her piece and my thoughts after the jump)
 
The ADA’s 2010 Standards for Accessible Design drew the ire of the hotel and resort industry by requiring fixed pool lifts.  Pool lifts (fixed or portable) allow people with mobility impairments to enter a swimming pool.  The new regulations require fixed (not portable) lifts to be at every pool.  These regulations go into effect this month (January 2013). 
The problems, according to the hotel and resort industries, involve liability and cost.  Some resorts have several pools at the same resort.  Many pools are unattended by a lifeguard.  Presently, resorts might have a couple of portable lifts that they bring out for use when needed, under trained employee supervision, and when the lift is no longer needed, it is returned to a secure location.   Under the revised rules, a fixed lift would be required at each pool. 
Fixed lifts, opponents argue, are a liability hazard because of the foreseeable injuries resulting from children and adolescents playing on them, jumping off of them into the pool, and other scenarios that anyone with a child can imagine.  People using the lifts at unattended areas could get trapped in the lift in the water.    

Fixed lifts cost thousands of dollars.  According to the American Hotel and Lodging Association, a fixed lift and installation could cost more than $9,000.  Installing a fixed lift requires a contractor because it must be affixed to the pool deck.  Electrical work might also be required.  There would be on-going costs involving maintaining the lift, ensuring it’s usable, training employees on its use, and repairing the lift, among other costs.

To address these concerns, HR 203 has been introduced into the 113th Congress.  HR 203 attempts to revise the new 2010 regulations by eliminating the requirement for fixed pool lifts:  (b) Revision of Rules- Not later than 60 days after the date of enactment of this Act, the Attorney General shall revise section 36.304 of title 28, Code of Federal Regulations, and any other appropriate rules in part 36 of such title to provide that--

(1) a public accommodation or commercial facility that has a pool and uses a portable pool lift on request shall be in compliance with the requirement under such rules to provide an accessible means of entry to such pool, even if installation of a permanent lift is readily achievable; and

(2) a public accommodation or commercial facility that has more than 1 pool and uses 1 portable pool lift on request for all such pools shall be in compliance with the requirement under such rules to provide an accessible means of entry to each such pool.

This blog attempts to view the ADA through “reasonable” lens.  Pool lifts allow for full and equal enjoyment of pools by the disabled.  Safety and cost, in this instance, present true limits, and because of these limits, it seems reasonable to allow pool lifts to be portable.  Portable lifts should be available for use at any time that the pool is open and their use should be on-demand, and not by providing notice.  Regarding (b)(2) above, the number of pool lifts available should be dependent upon the number of pools served by the lifts, instead of one lift for all pools.
 
Cost analysis aside, fixed lifts at unattended pools would be a safety hazard to the children and teenagers who would undoubtedly crawl on them, attempt to use them, and jump off of them, and a serious liability concern for the owners of these fixed lifts.  Providing full and equal enjoyment, while minimizing safety hazards, can be accomplished with portable lifts.

Jule makes a great point about the potential safety implications for fixed lifts.  In the ADA conversation, the focus is so often on accessibility (given that it is the point of the law) that by-products of accessibility sometimes get overshadowed.  This is a good example.  While I am not an expert in aquatic operations in particular, it seems to me that temporary lifts may make good sense from a safety perspective.  The very nature of a temporary lift means that its use will always be supervised by a qualified individual, and thus that the chance of misuse or horseplay around the lift is substantially reduced.  If the price to pay for a safer alternative for everyone is the few minutes of time that it takes to request and set up the lift, that does not seem like an unreasonable trade off to make.  The question will be whether Congress - who has much bigger projects on its agenda this term - will pay much heed to this issue that, many will say, was just addressed in new regulations that took effect only this month.  While I, personally, am not overly optimistic that HR 203 will find much traction, I think it represents good law and hope that it does.  

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