The deadline has passed for public pools and spas to comply with the Americans with Disabilities Act, and the lawsuits have begun.
As of Jan. 31, 2013, most public pools and spas must have a means of disabled access, with larger vessels needing two methods. Because lifts are seen by many as the most practical and least expensive solution, they have been the most popular.
Facilities that violate the ADA generally aren’t penalized unless a lawsuit or complaint is filed. That has begun to happen with pools and spas.
Scant weeks after the deadline, a lack of pool or spa access has been named in several lawsuits. In some, pool-related accusations are included in laundry lists of alleged violations against hotels and motels.
But one person has filed 22 pool-specific suits. So far, disabled veteran David DeBoard Jr. has named Indianapolis-area operations, including Hilton, Ramada, Comfort Inn, Best Western and Holiday locations, citing a lack of pool lift or other means of access.
The suits are nearly identical. All have been filed as class actions.
According to the complaints, DeBoard contacted the venues to book rooms and asked if they had pool lifts or other means of disabled access. Employees told DeBoard that their pools did not.
“The existence of barriers to use the pool at defendant’s hotel deterred plaintiff from staying at defendant’s hotel,” the complaint states. “… As a result of defendant’s non-compliance with the ADA, plaintiff and the class, unlike persons without disabilities, cannot independently use defendant’s pool.”
DeBoard has focused on hotels and motels because they are obligated to meet the law, and swimming is an important part of life to many in the disabled community, said his attorney, Eric G. Calhoun of Dallas-based Travis & Calhoun.
With the passage of the ADA, some have worried that plaintiffs and attorneys will look for infractions for the sole purpose of pursuing lawsuits.
“That would follow the typical pattern we’ve seen in other states,” said Kevin Maher, senior vice president of governmental affairs for the American Hotel & Lodging Association in Washington, D.C. “Attorneys just drive down the road and every business along the way gets … sued whether the person went to the business or had any intention of going to the business.”
An attorney representing one of the hotels added that this has become a cause for concern for the owners of facilities with pools. “[It’s] kind of scary for hotels that here’s a guy who, on the face of it, is just sitting in the kitchen making several phone calls [who] has been able to file at least 15 lawsuits that we know of,” said David Raizman, an attorney with Los Angeles-based Ogletree Deakins.
Calhoun rejected the notion that DeBoard is looking to gain monetarily from the ADA. “He’s not a litigious person,” Calhoun said. “But he’s willing to take on this matter and he’s been aggrieved by it.”
Raizman is advising his hotel and motel clients to comply with the law or, for those facilities where a retrofit is deemed not readily achievable, at least have a plan in place to present if a suit is filed.
The ADA also makes allowances for facility owners who believe that a lift would pose a hazard of some type, Raizman said. But he added an important caveat.
“The regulations make clear that [any hazard allowance] must be the judgment of somebody who is an expert in the area after making careful analysis of the particular situation,” he said. “For those clients who are going to claim some sort of safety issue with respect to the lifts, I would ask them to retain an expert to help them. Without that ... it’s unlikely to succeed.”