New ADA Guidelines Expose Pool Operators to Private Lawsuits

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Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at gmail.com.

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  1. Avatar Jaybird
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    says:

    So long as the policy primarily closes pools in the poorer parts of town, I think we can all say that it’s a success.Report

      • Avatar Jaybird in reply to trizzlor
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        says:

        If I’m complaining about the stick, I don’t know how much good it does me to have the carrot pointed out.Report

          • Avatar Jaybird in reply to BSK
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            says:

            It seems to me that this policy will result in pools closing, specifically, pools in the poorer parts of town (see the original post for reasons why).

            Having it pointed out that these poorer parts of town would qualify for tax breaks strikes me as insufficiently awesome.Report

            • Avatar BSK in reply to Jaybird
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              says:

              If the tax break facilitates them getting a lift and staying open… Isn’t that sort of relevant? The carrot is intended to avoid having to use the stick: if the carrot works, the stick is unnecessary.Report

              • Avatar Jaybird in reply to BSK
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                says:

                How’s this… let’s see how many pools have been facilitated by these tax incentives to get lifts by the end of the year and let’s see how many pools have been facilitated by the threat of penalties to close by the end of the year.

                We can do a comparison to see what part of town ate the carrot and what part of town feared the stick.

                I have my theories, of course.Report

              • Avatar trizzlor in reply to Jaybird
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                says:

                I have my theories, of course.

                Fair enough, it’s certainly possible for this to end up being an undue burden. But as with most ADA regs, the DOJ did a risk assessment <a href=”http://www.ada.gov/regs2010/RIA_2010regs/ria.htm”>analysis</a> weighing installation costs versus monetary benefits from increased use and found a net positive impact (Table 7); though it’s not clear how the cost/benefit is distributed over revenue brackets.

                It’s certainly true that the regulation already places an undue burden on those who are bad at managing their taxes.Report

              • Avatar BSK in reply to Jaybird
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                says:

                JB-

                I have no doubt that pools will close.  The tax credit is not a panacea that will suddenly make every pool perfectly accessible.  But it seems odd to not even want to hear about the carrot because you find the stick too bothersome.

                Again, the intention of the carrot is to avoid the stick.  Ideally, we would not be trying to move the donkey along (or not in the manner and timeframe proposed), but that is what it is right now.  You can point out the problems with the stick.  Pointing out how the carrot might be able to mitigate the stick’s problems seems germane to the conversation.  If one pool remains open that otherwise would have closed because of the tax credit, isn’t that better than NO pools staying open?  That doesn’t make the entire exercise a success… far from it.  But it does mean that the tax credit’s impact is better than nil, thus making it a relevant (if minor) part of the conversation.Report

              • Avatar Jaybird in reply to BSK
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                says:

                I have no doubt that pools will close. 

                Then we are in agreement.

                Now, given that I see public swimming pools as, more or less, a good thing (perhaps not an unalloyed good but definitely an alloyed one) then I see these regulations as shutting down good things.

                Where will these good things be most likely to shut down? In the parts of town where good things are somewhat more rare than in the other parts of town.

                This legislation won’t have any effect upon the mega-rich, it’ll barely inconvenience the merely rich, it’ll inconvenience the middle-class, and it will take pools away from the poor.

                You’d think that the Libertarians would love it.Report

              • Avatar BSK in reply to Jaybird
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                says:

                JB-

                I don’t disagree with a single thing you said here!  I was only objecting to this statement:

                “If I’m complaining about the stick, I don’t know how much good it does me to have the carrot pointed out.”

                Why would you not want to hear about the carrot, which might mitigate some of the stick that you are rightly concerned about?  Aren’t you in a better position to judge (and perhaps even criticize, if the carrot is as weak sauce as JH describes below) with a fuller idea of the situation?Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                Here’s why, in this case.

                What’s the upper bound of handicapable people who will be helped to swim by this bill that, otherwise, would not have swum? Let’s call that number X.

                What’s the lower bound of people who will be unable to swim at all because of a pool that has been closed because of this legislation? Let’s call that number Y.

                Is X larger than Y?

                If it is not, and I suspect that it is not, then this bill is actively malicious.

                That is why I do not care to hear about the carrot.Report

              • Avatar BSK in reply to Jaybird
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                says:

                How utilitarian of you!Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                Is the argument that pools that only accommodate 93% of the population ought to be closed a deontological one?Report

              • Avatar BSK in reply to Jaybird
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                says:

                Deonotological?  My philosophy study crapped out after intro courses in undergrad.  I can look it up, but my hunch is you can explain it better in a sentence or two than I would get from Wikipedia.  If not, I’m happy to do my own research but probably can’t reply too promptly.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                Sweeping generalization based on memory. Do not quote me. Deonotological ethics are ethics that stem from various first principles. It’s these principles that decide if a thing is good or bad rather than the outcome. (“non facias malum ut inde fiat bonum”)

                Utilitarian ethics, by contrast, base the goodness/badness of a thing by the outcome. (“The ends justify the means”)

                These are sweeping generalizations and ought not be used for wagering purposes.

                 Report

              • Avatar BSK in reply to Jaybird
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                says:

                So in this context, you were asking me if I thought there existed a “first principal” that justifies closing a pool, even if it is accessible to a vast majority of the population?Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                So long as we explicitly acknowledge that “So in this context” also refers to “immediately following a comment that says ‘How utilitarian of you!'” and also point out that I said “principle” rather than “principal”, I am willing to say that that was where I was going, yes.Report

              • Avatar BSK in reply to Jaybird
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                says:

                Heh.

                So I suppose the larger question you were asking is whether this situation is one better solved by appeals to deontology or utilitarianism?

                The utilitarian argument is essentially what you offered, namely that it is better to have a segment of the population, exclusive of another segment, swim than no one swim.

                The deontological argument would be that limiting access for people with disabilities is wrong and all attempts to stopping discriminatory practice are legitimate, regardless of outcome.

                Do I have that right?Report

              • Avatar BSK in reply to Jaybird
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                says:

                (Note:  I’m not attempting to argue any position at this point… just trying to understand the different approaches better.  If it seems as if my framing of the two arguments seems to be supporting one or the other, that is either accidental or based on a continued misunderstanding.  I appreciate you taking the time to help me better understand this.)Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                It seems to me that we’re playing a numbers game.

                What’s the upper bound of (whatever traited-) people who will be helped to swim by this bill that, otherwise, would not have swum? Let’s call that number X.

                What’s the lower bound of people who will be unable to swim at all because of a pool that has been closed because of this legislation? Let’s call that number Y.

                Is X larger than Y?

                It seems to me that in cases like “segregated pools” that X is not only larger than Y, Y is negligible.

                In cases like “pools made to accommodate thalidomide flipper babies”, X is very, very small and Y is much, much, much larger.

                It seems to me that public pools all over the country should not be forced to accommodate ribose-5-phosphate isomerase deficiency (the joke is that only one, only one, person in known human history has been diagnosed with such). Can we agree on that?

                If we can, now we’re haggling.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                And more than that: A strict utilitarian calculus would say that a 51-49 ratio would be sufficient.

                But we’re not talking about a 51-49 ratio. When it comes to disability, my quick googling tells me that there is a distinction made between “disability” and “severe disability”. Here’s from here and the numbers are from 1992, so I have no idea whether they’re appropriate for today…

                Based on information collected from the Survey of Income and Program Participation (SIPP) during the last 3 months of 1991 and the first month of 1992, the number of persons with a limitation in a functional activity or a social role was 48.9 million. The number with a severe disability (unable to perform one or more activities or roles) was 24.1 million.

                Now since disability is one of those things highly correlated with age (84% of people age 85 or older qualify as having a disability), this ads another dynamic to the discussion.

                My thoughts, when I was thinking about the disabled, were about paraplegics. I wasn’t thinking about people of a certain age.Report

              • Avatar BSK in reply to Jaybird
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                says:

                How about this:

                Municipal pools have X days/months/years* from the first complaint filed by an eligible** individual whose access to the pool is limited***.

                * I don’t know what a reasonable period of time is and it would presumably vary based on the accommodations needed.

                ** For municipal pools, they would need to be residents of the municipality or otherwise meet the criteria that other folks utilizing the facility must meet (no lawyers bussing in people with disabilities just to provide fodder for a suit).

                *** The burden would be on the individual to demonstrate that their access to the pool is truly limited.  If a sloped entrance or portable lift work for 99% of people with disabilities, they would be disqualified from filing a complaint based on the lack of a permanent lift.

                A streamlined system would be put in place for individuals to file complaints and for complaints to be reviewed.

                Only if the pool does not make the necessary accommodations in the prescribed timeframe can a lawsuit or other penalties be pursued.

                Thoughts?Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                It seems to me that a wide and gently sloped entrance (wide enough to accommodate a wheelchair) would meet the needs of 99% of the population. If it turns out that it meets only 93%… what then?Report

              • Avatar James Hanley in reply to Jaybird
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                says:

                A strict utilitarian calculus would say that a 51-49 ratio would be sufficient.

                Actually, a strict utilitarian calculus would include the different utilities of the affected individuals. Since your count measures number of preferences, rather than intensity of preferences, it’s a rather loose utilitarianism, I think.

                Of course that’s just part of my general critique of voting, one of favorite rants, so just ignore me and carry on.Report

              • Avatar BSK in reply to Jaybird
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                says:

                JB-

                It would vary from pool to pool.

                If Anytown, USA has zero people with disabilities severe enough to warrant any accommodations, they don’t need to do anything.

                If Smalltown, USA has people with disabilities severe enough to warrant accommodations but all of whom can be accommodated with a sloped ramp, then that is all they need to do.

                If Springfield, USA has one person with disabilities severe enough to warrant a permanent lift, but this person has no interest in swimming or using the pool, than they need no accommodate this person.

                If Capital City, USA has one person with disabilities severe enough to warrant a permanent lift and this person wants to swim every day, then they need to install the permanent lift.

                Why must it be a one-size-fits-none model?Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                Sure, we can slice and dice intensity of preference and amount of utility and so on and we could attempt to figure out whether a 12 year old enjoys public pools more than 77 year olds and stuff. Given that I don’t know how to measure this sort of thing effectively, I just went by headcount. Those, at least, are easy for me to measure.Report

              • Avatar Plinko in reply to Jaybird
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                says:

                A good demonstration of the silliness of Utilitarianism! 😉Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                Why must it be a one-size-fits-none model?

                Because by making it a Federal Law in the first place, we’ve acknowledged that we cannot trust local discretion.Report

              • Avatar BSK in reply to Jaybird
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                says:

                But why couldn’t my proposal be the federal law/regulation?Report

              • Avatar James Hanley in reply to Jaybird
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                says:

                JB,

                Oh, yeah, the best we can ever do with intensity of preferences is estimate them. Economists have some fancy methods for doing that (e.g., how far are people willing to drive to get to a pool?), but I don’t expect you to have to do that (because then you could turn around and demand that I do it, and my cost/benefit econ class was a long long time ago).  My only quibble was with the term “strict.”  And only because I have something of a pet peeve about simple number counts for decision-making.Report

              • Avatar James Hanley in reply to Jaybird
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                says:

                That’s a time-out for your, Plinko! Into the corner!Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                People move, people get born, people have injuries that they didn’t expect to get, and people grow old and become disabled. The pool that reasonably accommodates folks in 2007 suddenly becomes The Bigoted Pool in 2012.Report

              • Avatar BSK in reply to Jaybird
                Ignored
                says:

                If the populations needs change, the services offered change.  How is that any different than anything else?

                There are three choices, as I see it:

                1.)  Immediate accommodation for any and all possible needs, whether they are realized are not (the current proposal).

                2.)  Phase in accommodations as necessary, responding to the needs of the community served (my proposal).

                3.)  Do nothing unless pools voluntary choose to accommodate.  If they don’t, tough luck cripples!

                I’m sure you have a proposal other than those three, as you clearly don’t accept the first two and I doubt you are a proponent of the third.  For now, though, it just seems you enjoy shitting on what others have proposed instead of stepping up to the plate yourself.Report

              • Avatar Jaybird in reply to Jaybird
                Ignored
                says:

                Ahem.

                “It seems to me that a wide and gently sloped entrance (wide enough to accommodate a wheelchair) would meet the needs of 99% of the population.”Report

              • Avatar BSK in reply to Jaybird
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                says:

                And the 1% for whom it doesn’t?Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                Billboards discriminate against the blind.

                Radio stations discriminate against the deaf.

                The Three Stooges discriminate against people without a Y chromosome.

                To what extent ought we hold society accountable for not accommodating ribose-5-phosphate isomerase deficiency?Report

              • Avatar Will H. in reply to Jaybird
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                says:

                Disco discriminates against those deficient in boogie.

                Basketball discriminates against white people.

                Harley riders discriminate against rice burners.Report

              • Avatar BSK in reply to Jaybird
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                says:

                JB, if you are still reading… (or anyone else who can shed light)

                Leaving aside this particlar issue, I am still working on understanding deontological reasoning.

                If I hold to an initial principal that discrimination against people with disabilities is wrong, I would support shuttering all pools not accessible because that would achieve that aim, and I would disregard the costs (all the people without disabilities who now can’t swim in addition to the people with disabilities still unable to swim). Such a mindset would reflect a deontological approach, because I am seeking to satisfy the initial principal regardless of the ultimate “rightness” and consequences of the steps taken to realize it. If you objected as you did, my deontologically informed response would be, “But no one with disabilities is being discriminated against.” Do I have that right, in a nut shell?

                (I’m not necessarily advocating this position… Just trying to understand deontology better. Thanks.)Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                I don’t know what the proper deontological approach might be. I don’t know what the rule would be.

                If the rule is “it is wrong to use tax dollars to set up entertainments that only a percentage of the population is able to enjoy”, you could then argue that closing a pool (turn it into a dog park! everyone can enjoy those!) would be an appropriate response to a pool that operates under the assumption of ablenormativism.

                What’s the rule the deontologist is using?

                If we reach the point where we’re saying “well, it’s better for X to happen than Y”, we’re back to being utilitarian (and, thus, haggling).Report

            • Avatar trizzlor in reply to Jaybird
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              says:

              But it’s a carrot that protects you from sticks: if a public facility is poor then they are eligible for a tax credit to offset the cost of compliance, if they still cannot afford the fix then simply making a plan to achieve compliance would also satisfy the DOJ. To paraphrase some movie – there is no stick.Report

              • Avatar DensityDuck in reply to trizzlor
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                says:

                trizzlor, the issue is not the DOJ, the issue is the Unruh Act, which allows anyone not in compliance with the ADA to be sued.  There is no “we have a plan to ensure compliance” defense, there is no “we make accomodation available if it is needed” defense, there is no “tell us what we need to do to be compliant” defense.  If a private citizen can show a judge that you’re noncompliant, then you’re guilty, and you get fined.Report

      • Avatar James Hanley in reply to trizzlor
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        says:

        Trizzlor,

        That tax incentive for businesses isn’t going to do much good for my local city pool.

        And in general, as liberals like to (fairly) point out, tax incentives are great, but they don’t help you come up with the up-front costs at the time you need them.

        And they don’t help when there’s simply not enough of the access-enabling gizmos to go around.

        And they won’t cover the costs of any resulting lawsuits.Report

        • Avatar trizzlor in reply to James Hanley
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          says:

          Mr. Hanley,

          I think this topic would have been much better served if the OP also linked to the DOJ clarification that outlines what businesses should do if they cannot meet the requirement. In short, they simply need to come up with a plan to comply with the requirement over time. This seems like a reasonable compromise (maybe too lenient) for a situation that really needs to be considered case-by-case. Ideally this would be done at the local level first, but we have a pretty bad history of dealing with discrimination locally.Report

          • Avatar Tim Kowal in reply to trizzlor
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            says:

            The tenor of the DOJ’s letter would be comforting if the DOJ were doing the enforcement.  When dealing with trial lawyers running shake down suits, the possibility of not seeing eye to eye on whether the pool owner made good faith efforts to comply comes with a substantial risk of $4,000 for each violation (e.g., each day the pool was operated out of compliance) and attorney’s fees hanging of your head.  You’re far more likely to cut the lawyer a check, close the pool, and wait to see how this all shakes out.Report

            • Avatar trizzlor in reply to Tim Kowal
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              says:

              My read on the process was that you submit a plan to the DOJ and if they approve it then you’re in accordance with the law. Here’s the ADA checklist which I’m basing that assumption on, and here’s a sample plan where the business basically says “We can’t afford to fix this right now so we’re not gonna, but we’ll try later”.

              This seems like standard ADA policy, so if I’m wrong then their entire regulatory process is a massive liability hole.Report

              • Avatar James Hanley in reply to trizzlor
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                says:

                That doesn’t mean you won’t have to spend money proving compliance in court.

                Please understand my specific objection, which is not to the rule itself, but to the short time frame for compliance (or at least coming up with a plan for compliance).

                Consider how municipalities do their budgeting–my city could state their intention to comply, but if they’re at the wrong point in the budget cycle they will not yet have a clear read on their expected revenues for next year. Sometimes things like this need a couple of years lead time.

                A 6 week time time frame for enactment?  Hell, it will be a miracle if all public pool operators even become aware of the rule in that time frame.

                And in the town just north of us, they almost closed their combined public school/community pool, for lack of funds. A really hard worked campaign managed to persuade voters in the recent primary election to approve a millage to keep it open.  Fortunately they already have a zero depth entry, or they’d probably be looking at shutting down, and hoping the economy revived eventually so they could re-open it ten years from now.

                 Report

              • Avatar Tim Kowal in reply to James Hanley
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                says:

                James is exactly right here.  If everything else were the same and the guideline went into effect March 15, 2016 instead of 2012, there would be no issue.Report

              • Avatar BSK in reply to BSK
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                says:

                (PS:  I’m shocked and disappointed it took 60+ comments for someone to make this connection…)Report

              • Avatar James Hanley in reply to BSK
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                says:

                We don’t all watch that show, BSK.  Some of aren’t true geeks (or at just differently engeeked).Report

              • Avatar BSK in reply to BSK
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                says:

                But it’s got the greatest (only?) Libertarian character on TV!Report

              • Avatar trizzlor in reply to James Hanley
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                says:

                That doesn’t mean you won’t have to spend money proving compliance in court.

                I guess you’d have to spend the money required to find the approved plan and show it to a judge. Presumably you could also sue me for discrimination and I’d have to spend some money showing a judge that I don’t even have a pool. If these issues are really burdensome then they should be addressed through tort reform, not by getting rid of laws.

                A 6 week time time frame for enactment? Hell, it will be a miracle if all public pool operators even become aware of the rule in that time frame.

                Completely agree. But the DOJ issued an advanced notice in 2004 that this was going to happen; released proposed changes in 2008, holding several rounds of open hearings to solicit comments and private meetings to clarify; issued final changes in 2010. The AH&LA lobbying this issue waited over a year to ask for clarification, and three months later the DOJ met with them and issued a letter that … yes, the rules really do apply. That’s six years of discussing the rules (many of which actually come from a 2002 open forum), and then two more years to allow for compliance. All of that time to draft an implementation plan that I could write in an afternoon.

                Our government doesn’t move fast, and the ADA has been around long enough that there is a very clear and thorough rulemaking procedure in place and it was followed. The AH&LA, on the other hand, is acting pretty belligerently here by waiting until the last minute to request clarification and dredging up safety issues that were addressed over a decade ago. Their questions along the lines of can we keep the lift in a closethow quickly do we have to bring the lift outcan we offer the lift only to patrons who asked for it at the start of their stay make their intent here pretty obvious.Report

              • Avatar James Hanley in reply to trizzlor
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                says:

                Trizzlor, I have several points of disagreement.

                First, there are more costs involved in litigation than just finding where the plan is filed and showing it to the judge.  One of our lawyers here at the League could explain that in rather more detail than I.

                As to saying, the solution is tort reform, not “getting rid of laws,” I think you’re wrong on two counts.  First, nobody is saying we should get rid of the law, so that’s a strawman.  Second, regardless of whether or not we need tort reform, torts will remain an option in many cases, so federal regulations (and we’re really talking regs, rather than statutes, here) should not be written in a way that needlessly exposes parties to litigation.

                But the DOJ issued an advanced notice in 2004 that this was going to happen; released proposed changes in 2008, holding several rounds of open hearings to solicit comments and private meetings to clarify; issued final changes in 2010.

                A responsible business owner does not invest in compliance with proposed rules, unless there is no doubt of the outcome of the proposal and review process.  It’s common for the final rules to differ from the initial proposal, so the date that the process was initiated is irrelevant.

                The AH&LA lobbying this issue waited over a year to ask for clarification,

                According to the article, they previously thought they knew what was required, until last year they heard rumors that something different would be required. That’s not the same as just sitting on their thumbs waiting until the last moment.

                That’s six years…to draft an implementation plan that I could write in an afternoon.

                Yeah, democracy sucks because non-representative government is much more efficient.  I know that’s not what you’re saying, but really that’s the only place that argument really can lead.Report

              • Avatar trizzlor in reply to James Hanley
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                says:

                James, I totally agree that regulations should be structured in such a way that businesses are not caught off guard. The ADA rulemaking procedure – presenting broad areas of regulation, spending six years discussing the specifics, passing the law, and then providing 18 months to enact – seems pretty optimal to me. The idea that businesses had six weeks just to find out about this regulation is pretty unlikely.

                In this specific situation, the AH&LA claims that they were confused by the regulation because of informal comments and only contacted. This too seems unusual, since the regulations clearly state that the lift has to be “built in” and this hasn’t changed since the 2004 proposed guidelines which the AH&LA had plenty of time to discuss and amend. But even if they genuinely made an honest make, this simply means the businesses have six weeks to draft up a plan to implement the changes given reasonable constraints. I just don’t see how the DOJ can be more accommodating here unless they push back the deadline every time someone is confused about the regulation.

                BTW, the real scandal is that miniature ponies are now considered service animals and cannot be denied access to any public business, nor can you be asked to present identification that the service animal is necessary!Report

              • Avatar Tim Kowal in reply to trizzlor
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                says:

                Trizzlor,

                Again, thanks for the links.  I’ve responded in an “update” to the OP, above.Report

              • Avatar trizzlor in reply to Tim Kowal
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                says:

                Thanks for the explanation, the California incident does seem to show that this regulation opens businesses up to malicious litigation.

                As Hanley proposed, I would be much more supportive of a process where the ADA sets an expected end goal and individual businesses can be shielded by the DOJ if they draft a plausible plan to reach that goal (which would include things like, “our town has three pools and one lift. and we’ll install more as money allows”). This does introduce a hairy situation where a business either has to place their fate in the hands of a bureaucrat at DOJ or have cash on hand to fend off malicious suits.Report

              • Avatar DensityDuck in reply to trizzlor
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                says:

                “I would be much more supportive of a process where the ADA sets an expected end goal and individual businesses can be shielded by the DOJ if they draft a plausible plan to reach that goal…”

                See, I think that everybody would be more supportive of that process, but the California Supreme Court decided that this was not the process we should follow.Report

    • Avatar Chris in reply to Jaybird
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      says:

      Better than letting a bunch of cripples in the pool. Am I right?Report

      • Avatar Jaybird in reply to Chris
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        says:

        Out of curiosity, would “swim at your own risk” sign still apply under these circumstances or do you think that a corporation with pockets deep enough to purchase one of these things yesterday would be held liable by a court for a paraplegic drowning if you could get two or three witnesses to tell a jury “I thought that since they had a lift that it would be *SAFE*!”Report

        • Avatar Chris in reply to Jaybird
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          says:

          You know disabled people have, on occasion, swum in a pool in the past, right?Report

          • Avatar Jaybird in reply to Chris
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            says:

            Without a lift????

            I mean, sure. Out of curiosity, do you think that a corporation with pockets deep enough to purchase one of these things yesterday would be held liable by a court for a paraplegic drowning if you could get two or three witnesses to tell a jury “I thought that since they had a lift that it would be *SAFE*!”?Report

            • Avatar Chris in reply to Jaybird
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              says:

              The thing is, they have to have a lift already, just not one that’s permanently in place. Actually, they don’t even have to have a lift. They could have a sloped entrance, which many pools have. So yeah, disabled people have swum before. Whatever litigations might come have probably come before, because we live in an absurdly litigious society and someone has sued someone else for just about every logically possible reason.

              By the way, if a kid drowns, can someone say, “They had a shallow end so I thought it would be safe?!”Report

              • Avatar Jaybird in reply to Chris
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                says:

                We can see what happens with the legislation.

                Maybe people who never had opportunity to swim before will experience the joys of doing so.

                Maybe pools will close.

                If it’s the latter, I think we can all agree that this is *NOT* what we intended when we defended this.

                 Report

              • Avatar Brandon Berg in reply to Jaybird
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                says:

                Maybe pools will close.

                Then nobody can use them. Which is the next best thing to everybody being able to use them.Report

              • Avatar Chris in reply to Jaybird
                Ignored
                says:

                Oh, I assume people will be sued post-ADA update (which, again, was passed by Congress in 2010) just as they were pre-ADA update.

                I also don’t doubt that a few pools will close because of increased costs. The vast majority won’t, though.Report

  2. Avatar Kimmi
    Ignored
    says:

    Weighing in here, as I know someone who uses a wheelchair. She used a pool as her sole place to get exercise, as anything else was far, far too dangerous (carrying a heavy bookbag was enough to break her hand). Now, I’m not saying that everyone who is in a wheelchair is like this — but there’s a good reason for making pools accessible.

    Not defending the implementation, per se, but I do have to wonder — if it’s a bad thing to “need to call five guys to get a lift over a curb” to get to a restaurant, isn’t it also a similar, if lesser, thing, if you need to get the portable lift? I dunno what degree of hassle there is, but many city pools have 1 lifeguard, and maybe a gatekeeper. That doesn’t really seem like you’d have the manpower to go grab the lift. (another thing entirely, in my opinion, if they’re willing to set it up ahead of time).Report

    • Avatar Brandon Berg in reply to Kimmi
      Ignored
      says:

      It’s one thing to say that people in wheelchairs should have access to pools. It’s another thing entirely to say that every pool has to be wheelchair-accessible. What the government is doing now is essentially levying a tax on everyone who operates or uses a publicly accessible pool and using it to provide a subsidy to handicapped people in the form of a fixed lift at every single one of those pools.

      This is very obviously a horribly inefficient solution. Scrap the regulation and compensate for it by increasing SSDI benefits a bit. Those who really want pool access will form the market for wheelchair-accessible pools; others will be better off spending the money on something else.Report

      • Avatar Kimmi in reply to Brandon Berg
        Ignored
        says:

        sorry, but this is bullshit. A pool is a public place, just the same way as a bus is. It’s a public place where people get exercise. Like a park. The fact that it costs more money to make a pool “habitable” is rather irrelevant. Don’t make me pull some pics on what happens when you don’t maintain a pool… (socal is scary!)

        Seriously, it costs a good deal to have a pool. My high school never had one.

        Not everything needs to be ADA accessible. Presumably there are TONS of places that won’t need lifts. I can cite you about ten nearby, in fact. They’re called LAKES. People swim there.Report

        • Avatar Jaybird in reply to Kimmi
          Ignored
          says:

          If you think pools are scary when they’re not maintained, you should definitely avoid lakes.Report

        • Avatar James Hanley in reply to Kimmi
          Ignored
          says:

          The fact that it costs more money to make a pool “habitable” is rather irrelevant.

          Costs are never irrelevant.  And look again at what we’re talking about–nobody’s saying there shouldn’t be pool access for handicapped persons.  The issue is how much lead time is given for compliance when a particular rule is promulgated.

          There’s a whole level of ignorance here about how much some towns are struggling to keep public amenities available to the public. Come to my town, I’ll give you not-so-grand tour.  If handicapped access this summer instead of next summer causes the town to shut the pool down completely, then the rule hasn’t helped any handicapped people in that town has it?  And added onto not helping handicapped persons in that town, you’ve harmed a whole lot of others.Report

          • Avatar Kimmi in reply to James Hanley
            Ignored
            says:

            … says the utilitarian. I’m quite allowed to be Kantian on some things. 😉 Still, your point stands.

            If a trial lawyer in your town sues, I recommend a highly vocal public boycott of the person. I think it would stick.Report

          • Avatar Roger in reply to James Hanley
            Ignored
            says:

            James,

            I am certainly arguing that there should not be mandatory regulations to add handicap access to every pool available to the public. There are cheaper and freer ways to solve the problem.Report

            • Avatar James Hanley in reply to Roger
              Ignored
              says:

              Roger,

              I hear you, and I think it’s a legitimate position.  I just ultimately don’t agree–at least for municipal pools–because I think ghettoization does create stigma.  It can also create a problem where a handicapped person can’t use the pool closest to where they live, but have to travel much farther than the average person to get to an accessible pool.

              Where I’m coming from is a weird sort of personal experience with accessibility. I’ve never been handicapped, but when I spent a year at Indiana University I did have two little kids in a double-stroller, and because of that I realized just how wheel-chair unfriendly that campus is.  The distances a person might have to go to avoid stairs was astounding–in one case iirc we estimated it at over a quarter mile to get to a ramped walkway, then a quarter mile back, to get between two buildings that were only about 40 yards apart, but with one being much farther down the hill.

              I don’t think only handicapped people should get to weigh in on these decisions, but I do think the relevant decision-makers should be required to go through training where they actually spend a week in a wheelchair, spend a week being blind, and so on.Report

              • Avatar BSK in reply to James Hanley
                Ignored
                says:

                I think how we define “public” matters.  The municipal pool?  Yes.  The hotel pool at the Ritz-Carlton or the Days Inn?  Not necessarily.  Not immediately, at least.

                The problem is the latter are generally better equipped to meet the regulations and to do so in the limited time frame offered than the public pool.

                Seriously, March 15th?  How many pools are even open today?Report

              • Avatar Roger in reply to James Hanley
                Ignored
                says:

                James,

                I thought it applied to privately owned pools and hot tubs at health clubs and hotels too? You and I could come up with much better ways to address handicap needs than this type of rule for private industry.

                By the way, I like the new picture. Is that done with one of those new hi def megapixel cameras?Report

        • Avatar Roger in reply to Kimmi
          Ignored
          says:

          I am currently lobbying for echolocation perimeters for pools and spas. This way, blind people can do laps without worrying about running into the hard edges. It only costs about a million dollars per pool, but it’s like super pc and it makes it seem like I care, so what the hell.Report

    • Avatar Snarky McSnarksnark in reply to Kimmi
      Ignored
      says:

      These are the kinds of regulations that turn people into libertarians.

      I had a client once:  a company that manufactured windows for houses.   Its factory was filled with about 250 workers.   Under the ADA and local zoning restrictions, they had to reserve 8 parking places for handicapped persons, which ended up displacing about 20 regular-sized parking places.    The owner of the company had to rent a lot down the street to serve as a satellite parking place.     In the almost twenty years that they had been in business at that location, no one could recall a time that a genuinely handicapped person had ever parked at the factory.Report

      • Avatar Kimmi in reply to Snarky McSnarksnark
        Ignored
        says:

        That… seems kinda exaggerated. I’ve seen two or three handicapped parking spaces for an entire shopping mall.Report

        • Avatar James Hanley in reply to Kimmi
          Ignored
          says:

          Not exaggerated at all.  We had friends who ran a dance school in Oregon–in addition to the required handicapped spaces, they had to have spaces for bicycle parking, too.  To comply, they had to rent parking spaces at the store across the street.Report

          • Avatar Patrick Cahalan in reply to James Hanley
            Ignored
            says:

            Yeah, well you live in OREGON.  They won’t even let you pump your own gas there!Report

            • Avatar Tod Kelly in reply to Patrick Cahalan
              Ignored
              says:

              Allowing people to pump their own gas is just an invitation to needless death.

              (Also, I think James & Johanna are Nor’Easterners now.)

               Report

            • Avatar BSK in reply to Patrick Cahalan
              Ignored
              says:

              Oregon has that law too?!?!?!  I thought that was only NJ.

              Supposedly that regulation helps keep gas prices low in the state (among other factors, as well).  The cost of employing gas pumpers is less than the cost of the insurance necessary to have people pump their own gas.Report

            • Avatar Alan Scott in reply to Patrick Cahalan
              Ignored
              says:

              Just an aside, but I was just in Oregon last week, and the pump your own gas thing is really creepy.

              The pumps (at least those used at the station I stopped at) were still designed for self-serve use, so you hand your credit card to the attendant, who then needs your zip-code to proceed with the transaction.  I guess debit is out of the question… And it seems like an opportunity to mischief regardless.  After the automatic shutoff, the guy tops it off–an extra dollar’s worth at least.  Isn’t that supposed to be unsafe?  I’m not sure where someone else pumping my gas is supposed to be safer if they’re disregarding the rules and warnings they post on the gas pump.Report

      • Avatar Plinko in reply to Snarky McSnarksnark
        Ignored
        says:

        These are the kinds of regulations that turn people into libertarians.

        +1 to this.Report

      • Avatar Alan Scott in reply to Snarky McSnarksnark
        Ignored
        says:

        What crazy-assed parking situation requires the elimination of 20 spaces to create 8?  That just sounds like bad planning all along.Report

        • Avatar Snarky McSnarkSnark in reply to Alan Scott
          Ignored
          says:

          A regular parking spaces is more-or-less the width of a car.   A handicapped space (at least here, in California) requires sufficient buffering on the left and right to allow a wheelchair to be removed and rolled through.

          Report

          • Avatar James Hanley in reply to Snarky McSnarkSnark
            Ignored
            says:

            A regular parking spaces is more-or-less the width of a car.   A handicapped space (at least here, in California)

            My experience in California suggests that the “more or less the width of a car” equation tends toward the “less” side of things.Report

            • Avatar Patrick Cahalan in reply to James Hanley
              Ignored
              says:

              There are *lots* of nonconforming handicapped spaces in California.  Interestingly, they’re highly correlated with “empty handicapped spots” in medium-sized parking lots.

              Small businesses, in particular, grab blue paint and put it on the lot in one of the spots, figuring that’s good enough to prevent someone from complaining about the rules.  Since the actual incidence of people who travel in cars but need wheelchair exit access is far, far outnumbered by old people who get handicapped space access because they occasionally use a walker, you can get away with this for a long time.Report

              • Avatar Kimmi in reply to Patrick Cahalan
                Ignored
                says:

                also, if you have three handicapped spaces, and someone parks across two of them, there’s probably not going to be a second person there wanting access.Report

              • Avatar Alan Scott in reply to Kimmi
                Ignored
                says:

                There are five handicapped-access spaces at my workplace.  They displace six regular parking spots, because the parking lot was designed that way when it was built in the early eighties.

                During our busiest hours, every spot is often full.  i recall one incident when i had to force an elderly woman with a walker parked in the fire-lane because all the spots were full, and I had to make her hobble outside and park her car further away from the store.  On that occasion, some jackass had parked in a spot without the appropriate license plate or placard, but there’s really not much we can do about those thankfully rare instances.  We just have to hope that the rest of our customers aren’t dicks.Report

      • Avatar Liberty60 in reply to Snarky McSnarksnark
        Ignored
        says:

         Under the ADA and local zoning restrictions, they had to reserve 8 parking places for handicapped persons, which ended up displacing about 20 regular-sized parking places. 

        That sounds not just exaggerated, but wildly so. Your friend might as well have stated that it required “about a gajillion bucks and a buttload of paint”.

        Under California law, 8 accessible spaces is only needed for parking losts of between 300-400 spaces. I would be hard pressed to imagine a design that required sacrificing 20 stalls to fit in 8 disabled ones.

        Even a layman can look at the diagram you posted, and see that an accessible stall is no different than a normal one, except it has a 5 foot aisle next to it; in your diagram, both of those stalls are now “accessible” with only the cost of a 5 foot wide strip, or a ratio of 2 accessible stalls for one regular. So adding 8 accessible stalls should cost on the order of 4 regular stalls, not 20.

        But commenters ARE correct- this IS the sort of wildly exaggerated crap that creates libertarians- like Rand Paul bitching about having to install an elevator in a building, when a quick check showed that in his example, no such thing would be required.

        This is the architectural version of “strapping young buck buying T-bones with welfare” anecdote.Report

        • Avatar Snarky McSnarkSnark in reply to Liberty60
          Ignored
          says:

          I used to go to their site, periodically, and it is true.   Because of the layout of the parking lot (which was a strip adjacent to the factory), and its configuration (the area was broken up by loading docks), one handicapped space could be placed where there used to be three “standard” spaces.

          When visiting my client, I very often had to park at the “satellite lot,”, which was 400 or 500 meters away.    This was doubly frustrating, because I had to walk past a vast empty space where the handicapped spaces were located.Report

  3. Avatar BSK
    Ignored
    says:

    Aren’t hotels, spas, and pools private?Report

    • Avatar Brandon Berg in reply to BSK
      Ignored
      says:

      Sort of. They’re private property, but the government has decreed that when you operate your private property as a place of public accomodation–that is, a facilitiy which anyone can just walk (or roll) in off the street and pay to use–you forfeit certain rights.Report

      • Avatar BSK in reply to Brandon Berg
        Ignored
        says:

        Gotcha.

        I find it interesting that folks and businesses that attempt to offer their products and services to a wider segment of the population are almost pnished for it. There are higher expectations for the public pool open to all town residents for a small fee (if that) than there are for the douchey private club that often does its darndest to keep out blacks, Jews, women, and OF COURSE the cripples.Report

  4. Avatar BSK
    Ignored
    says:

    Aren’t hotels, spas, and gyms private?Report

  5. Avatar Will H.
    Ignored
    says:

    I understand that some swimming holes have gators in them.
    And I understand that, for those that do, having a nice little sign with red lettering might be nice just to give people a bit of notice about what they should be swimming away from if it happens to try to eat them.
    And I understand that too many gators in the pool and someone’s going to be calling the Sheriff out.
    That’s where the need for government comes in.
    Being the USA, we have no need to concern ourselves with whether this is the King’s Gator.
    We need only concern ourselves with whether the gator in question has won a Nobel shortly after an election in which the gator held practically no prior experience whatsoever in public office.
    There are many ways we, as a society, might warn people about gators in the pool.
    Myself, I king of like the idea of a dwarf in red and green clothing standing on a rock playing a flute.
    There are legitimate uses for government, you see.
    At any rate, once the federal government becomes involved, a decree will go out that nice little signs with red letters should go out to each pool in the land that people who swim might be warned of gators thereby.
    And they have a whole separate paragraph where it spells out exactly how nice of a little sign they get.
    Will swimmers be safer?
    Many lives could well be saved to end in traffic fatalities en route to the swimming hole.
    Efforts to relocate the gators to the Amazon and teach them to play the congas and clog dance have proved limited in success thusfar.Report

  6. Avatar North
    Ignored
    says:

    It certainly sounds idiotic as presented and as a supporter of O and the Dems in general I have no problem with saying so.Report

    • Avatar Chris in reply to North
      Ignored
      says:

      It’s not quite as idiotic as this makes it sound. The pool owners just have to show that they made a good faith effort to get one. If there aren’t any available, they’re fine until there are some available. And there are plenty available. If you google ADA lifts, you’ll find that there are a bunch of companies making money off of this. Which, of course, is precisely the way stuff like this works.

      I admit I have no problem with laws like this (and it’s not just an Obama law, it is an update passed by congress a couple years ago). I know, poor hotel chains! Yawn.Report

      • Avatar Pierre Corneille in reply to Chris
        Ignored
        says:

        I don’t have a problem with such laws in principle.  And I tend to roll my eyes when people put on their Moll Flanders hat and shriek “won’t somebody please think of the business owners!”

        Still, I do sometimes worry about the practical effect of such laws, and I’d need to know more before rendering a final verdict on the particular guidelines (and their enforcement) that Tim talks about.Report

        • Avatar Will H. in reply to Pierre Corneille
          Ignored
          says:

          I live in a town of 6000 people. It’s the county seat.
          It’s a place on the rail line where there used to be a coal mine. Not so much any more.
          But there are still people here.
          I hear a lot of complaints about the stimulus money, mainly that it went for junk instead of where it was really needed.
          The sheriff’s dept. got new shotguns so they wouldn’t have to buy several different types of ammunition. But they never used the old shotguns anyway. No cruisers though.
          There’s all kinds of work being done on the interstates in the cities. Not much done on the roads out in the county.
          The state taxes went up about 50% from two years ago.
          How much money is our school district going to have to comply with this?
          How much money is our county going to have?Report

          • Avatar Pierre Corneille in reply to Will H.
            Ignored
            says:

            I don’t understand what point you’re trying to make.Report

            • Avatar Will H. in reply to Pierre Corneille
              Ignored
              says:

              Think of what it would cost for the county to buy a new snow truck.
              Then think of how often this actually happens.

              Now, think of what the total cost is for the county & the school system (which are funded mainly through property taxes) to comply would be.

              Whereas something tells me that if getting people in and out of the pool is a problem, we would already have some manner of system in place to address that need.
              But if some centralized planner from some bureaucratic department has determined that we need a robotic arm to turn people like pancakes, that’s what we get instead of the snow truck.

              Which is to say, what level of government might best address this need?Report

              • Avatar Pierre Corneille in reply to Will H.
                Ignored
                says:

                Is the right answer “the local level”?

                I get what you’re saying, now that you’ve shown how it’s relevant to the issue at hand.  I should clarify that I don’t have a problem, in principle, with laws requiring pool owners or other business owners to make reasonable accommodations.  Of course, what is reasonable to me is not necessarily reasonable to thee (please pardon my presumption in using the familiar “thou” form with you).  And I agree, as I said in my comment, that I would need to know the effects of the policy before rendering a final verdict.  Finally, I even agree that the ADA, as a federal law, probably has a lot of problems because, among other reasons, it would tend to make one-size-fits-all regulations / guidelines.

                At any rate, thanks for answering my question.

                 Report

              • Avatar Kimmi in reply to Pierre Corneille
                Ignored
                says:

                except it doesn’t.
                Except if you listen to Rand Paul, who doesn’t read legislation before whining about small businessmen (who are in fact exempted from portions of the damn thing)Report

              • Avatar Pierre Corneille in reply to Kimmi
                Ignored
                says:

                Well, Will  H. answered my question about what he meant by telling his story.  And that’s what I thanked him for.Report

              • Avatar Kimmi in reply to Pierre Corneille
                Ignored
                says:

                gomene, was responding to your “ada is a size fits all” type reg. it’s not.Report

            • Avatar James Hanley in reply to Pierre Corneille
              Ignored
              says:

              Pierre,

              Let me chime in with Will here.  My town has 20,000 people, and as an old Midwestern industrial town has been in significant decline economically.  Housing prices are still far off what they were in ’06 when I bought my house, property tax assessments are down, several large industrial employers have left the town in just the last few years, the downtown is largely vacant, etc. etc.  Fortunately we had a mild winter, because last year we ran out of salt for the roads and literally couldn’t  afford to buy more–the last month of winter was really treacherous on the roads.

              We have a pretty nice public pool that is heavily used, but now needs some substantial repairs; a new liner and one of the sidewalls needs to be rebuilt. When the kiddy pool plumbing malfunctioned, they filled it in with concrete instead of replacing it–less costly, and one less lifeguard to have to pay.

              Now they need to add a permanent lift, instead of the portable one?

              OK, in reality my town’s pool already has a fixed lift–fortunately–but everything else is true, and we’re not that unusual, so there must be towns that are in similar financial straits that don’t have fixed lifts yet.  The issue in this case is not the law itself, but the time frame.  It’s simply bad policymaking to spring large costs on people without sufficient advance warning.Report

              • Avatar BSK in reply to James Hanley
                Ignored
                says:

                “It’s simply bad policymaking to spring large costs on people without sufficient advance warning.”

                I don’t know that anyone is arguing otherwise.  Anyone who has supported the policy has either included a caveat about the “how” and “when” and/or talked more broadly about the goals of the effort.

                Is it an unreasonable position to say, “The goal and ultimate end result of this policy is probably a laudable one.  The way it is being implemented is flawed for a whole host of reasons”?  Because that is sort of where I am at.Report

              • Avatar James Hanley in reply to BSK
                Ignored
                says:

                No, it’s not unreasonable at all. I was just emphasizing that the large upfront cost with a short time-frame really is a serious issue, whereas a few folks here seem dismissive of it.

                I don’t think anyone here is disputing that handicapped access to pools is a good policy.

                But there are at least two other elements of the implementation that can be reasonably debated.  First, does every pool need to be handicapped accessible?  If my town has two pools, is it sufficient to just make one accessible? Second, is it reasonable to require fixed equipment rather than portable equipment?

                As to the first, I’d say yes, in the long run. I think there’s real problems with ghettoizing a portion of the citizenry by saying “you only get to swim here.”  (What if I’m handicapped, but my children prefer to swim at the pool with the big slide, and only the pool without has the lift I need?)  But I think that they could be phased in sequentially, getting a lift for one pool now, and the next one in a reasonable time frame (although I don’t want to get into specifics about what reasonable would be here).

                As to the second, I’d need more technical knowledge.  I’m generally in favor of setting the end-goal as the requirement and letting the affected entities figure out what works best for them, so I’m inclined to doubt the value of the fixed-lift rule.  But perhaps there are problems with portable lifts, and I’m simply unaware of them due to lack of expertise. If there are problems with them, then the fixed lift requirement would be reasonable.Report

              • Avatar BSK in reply to James Hanley
                Ignored
                says:

                Here, here, on all accounts.

                My proposal: Hire a beefy lifeguard or two who can toss people with disabilities in and lift them out afterwards.  In the interest of equity, hire a female swimsuit model or two.  JOB CREATING!Report

              • Avatar Alan Scott in reply to James Hanley
                Ignored
                says:

                Thinking on it, I haven’t seen a public pool that didn’t meet the ADA guidelines in more than ten years.  On the other hand, I’m not sure I’ve ever seen a lift in a hotel pool.

                I’m not at all surprised your local pool has a portable lift.  The parks and such I’m familiar with are pretty good at disability accommodation–and as trizzlor points out above, this has been a known issue for at least a decade.

                Given that all anyone apparently needs to do is “have a plan in place” in order to be compliant, I’ll be surprised if any pools actually close.  And if they do, it probably says more about the irresponsibility of the pool operators than it does about the ADA.  Sounds like we need to realize this is less about the neighborhood pool closing and more about a greedy hotel lobby who found a nice soundbite to hammer their political opponents with.Report

              • Avatar Plinko in reply to Alan Scott
                Ignored
                says:

                I don’t stay in many hotels with pools, but I can tell you every “public” pool I’ve been to in our little corner of Georgia does not have a permanent lift. Now it might be that they had a portable one that they brought out when needed, thinking that would be sufficiently compliant, or maybe they were never compliant.Some of them have sloped entrances, but many do not.

                 Report

              • Avatar Pierre Corneille in reply to James Hanley
                Ignored
                says:

                James,

                Thanks for the comment (I just got back from work, so I haven’t had a chance to check the blog all day….that’s why I’m answering now).  I think I agree with BSK when he says, “Is it an unreasonable position to say, ‘The goal and ultimate end result of this policy is probably a laudable one.  The way it is being implemented is flawed for a whole host of reasons’?  Because that is sort of where I am at.”  Of course, from your answer, I know you don’t disagree.

                My main question of Will H., when I said I didn’t know what he meant, was that he had a very long comment about profligate sheriffs and taxes not being able to pay for schools and roads, and I couldn’t see how it related to the issue of swimming pools.  When he elaborated, he answered my question.

                In all honesty, I haven’t given much thought to the ADA at all.  So perhaps I can learn something from this thread.Report

              • Avatar DensityDuck in reply to Pierre Corneille
                Ignored
                says:

                “In all honesty, I haven’t given much thought to the ADA at all.”

                Neither did the people who wrote it.  (bah-doomp)Report

      • Avatar Roger in reply to Chris
        Ignored
        says:

        Chris,
        Yes, it really is as idiotic as it sounds. The person that is hurt by this regulation is the consumer. The net effect is to increase the price of a pool and accompanying hot tubs. This makes it more likely that the pool or spa is never built, or is closed.

        Classic case of concentrated visible benefits and distributed, hidden costs. Pathetic. Next thing they’ll do is make us buy toxic waste light bulbs. Yawn, poor little consumers.Report

        • Avatar Kimmi in reply to Roger
          Ignored
          says:

          because when there’s an obvious, works better and is cheaper solution, epople areforcing you to buy the toxic waste bulbs????

          seriously, read a bit. then go LED.Report

        • Avatar Chris in reply to Roger
          Ignored
          says:

          It does increase the cost of a pool for certain providers, but that doesn’t make it idiotic.Report

          • Avatar Roger in reply to Chris
            Ignored
            says:

            Chris,

            With zero effort, I could give you a half dozen ways to accomplish similar results for less cost. I am saying it is idiotic because it is ridiculously expensive way to solve a problem which will lead to various hidden costs and problems including fewer pools and hot tubs for all and higher costs for consumers and taxpayers.

            I can understand that you think it is a good idea that every pool and hot tub has handicap access. I can understand you being willing to fund it with your hard earned money. I have no respect for trying to force the rest of us to fund this silliness whether we want to or not. What is next… Expecting me to pay for college girl’s birth control pills? Nah…Report

            • Avatar Chris in reply to Roger
              Ignored
              says:

              Roger, if you were paying for college girls’ birth control pills, I would wonder about you, unless you happen to be college age.

              Anyway, I look forward to reading your half dozen ways. Also, you know that this isn’t taxpayer funded, right?Report

              • Avatar Roger in reply to Chris
                Ignored
                says:

                Chris,

                Of course it is by consumers and taxpayers. Who did you think pays, pool fairies?

                More efficient solutions:
                1) require public pools to comply over time and supply a list of private pools that meet requirements
                2) create a marketable certification process where hotels and spas can advertise themselves as handicap enabled
                3) do nothing
                4) ask hotel industry to come up with a solution that meets needs of handicapped at minimal expense
                5) let those that like this rule to voluntarily contribute to a fund that pays for it
                6) ask four states to create and pilot experimental solutions and use results to select and design most efficient solution
                7) require one hotel within 10 mile radius meet requirements ( details to coordinate available upon request)
                8) require hotels over a certain size to comply with pool access and even a larger size to comply with hot tub access

                I could go on for hours.

                And yes Chris, we are being required to fund birth control now. A total abuse of insurance, which efficiently handles catastrophic loss, but is ill designed for routine expenses.Report

              • Avatar Liberty60 in reply to Roger
                Ignored
                says:

                1) this is exactly what the DOJ has done; the rules were drafted with plenty of public comment and enforcement was allowed over a period of years.

                2) How does this provde better access to the disabled? It doesn’t. And doesn’t sound like it is meant to.

                3) AKA IGMFU

                4) Again, this is exactly what was done; the regulations were (and always are!) drafted by a group that includes disability advocates, hotel owners, building officials, engineers, etc. What you seem to propose is that hotel owner and ONLY hotel owners be allowed to dictate the rules and everyone else simply submit to them.

                5) AKA IGMFU

                6) Wildly impractical, and leads us to exactly the position where we are now.

                7) Who decides who the lucky hotel is? Which 10 miles?

                8) Again this is exactly what the rules state. There is scoping language to exempt certain properties.

                Ultimately, what you are proposing is  a world in which disabled people are allowed access only as a privilege, at the whim and discretion of those who own properties.Report

              • Avatar Roger in reply to Liberty60
                Ignored
                says:

                Hi Liberty,

                You are glossing over several points. On numbers 1, 2,4, 7and 8 the basic concept is that we can serve the needs of a small minority of handicapped by a subset of private pools and tubs. It is a niche market which is being addressed with a mass market solution. I can see disagreeing with particular manifestations of the idea, but I am not sure you are even addressing the idea.

                Where you reply IGMSFU, my reply is stop trying to shove your D up my A. If I think echolocation pools for the blind should be the universal standard, the manly thing to do is put my own money into supporting my values. It is real cheap and sleazy to try to force your values on others by making them pay. It is a case of I Want You To Fund My Values So FU.

                Regional experimentation is not wildly impractical, and you have never made the case that we are better off with this expense to solve the problem. You just assume it and pass laws to make me agree.

                Progressives thrive off a zero sum model of the world that destroys the very value they espouse.Report

              • Avatar Liberty60 in reply to Roger
                Ignored
                says:

                I think we are at the point where we can define our stances and agree to disagree.

                You are proposing two things: One, that the market will provide adequate access for the disabled; and two, for those that the market won’t provide, they simply have to, well, suck it up.

                in other words, you aren’t suggesting that the market will completely and adequately provide the degree of access that the ADA does; you are simply saying that it will provide “good enough” provision that the costs and burdens required by the ADA are not necessary.

                What I am saying is that the costs of ADA compliance are not, IMO, so onerous and burdensome that they are less than the benefits of a society where access is provided to all.

                Not ALL forms of access are necessarily worth their costs; you will note that the ADA specifically avoids any discussion of echolocation pools. So we as a society can debate and negotiate over how much access is worth how much costs.

                But the fundamental disagreement is that the benefits of access are not enjoyed only by the disabled; I believe that all of society- including you- benefit from providing disabled people ways to be productive consumers, employees, and “job creators”. I do believe it is a win-win positive sum game.Report

              • Avatar Kimmi in reply to Roger
                Ignored
                says:

                within TEN FUCKING MILES? There is NO freaking requirement for transportation more than half a mile from a fucking bus stop. How are you going to get folks to these handicapped enabled hotels? Even if you get them there, how do you expect them to have the freedom to spend money and create jobs via being a consumer??

                Mapping a car-literate solution onto people most likely to not use cars is REally dumb.Report

              • Avatar Roger in reply to Roger
                Ignored
                says:

                Liberty,
                I am attempting to look for non-coercive, decentralized solutions. Absent these, I would look for efficient solutions with minimal coercion. I believe this path leads to better more robust solutions that cumulate in greater long term progress and prosperity.

                As an example, a handicap friendly certification process could be created for all hotels and health clubs. This can be marketed by complying properties. Handicapped individuals can select these sites for their stays. Last I checked, those in wheel chairs are good customers. When I travel, I always compare amenities and choose one that meets my needs. sometimes I look for a health club, sometimes pet friendly, etc. Handicapped people are just as capable of shopping for properties that meet their needs. Right?

                Echolocation pools are just an extreme example to point out that there is no end to the process. Someone named Liberty61 in 10 years will just counter that we should quit being selfish and retrofit pools for the blind.

                Your comment that the disabled can be productive members of society too is condescending. What makes you believe they are not already.? What data do you have that they are undeserved today in hotels and health clubs? Why do you assume they cannot be marketed to like dog owners, non-smokers and the health conscious?Report

              • Avatar Kimmi in reply to Roger
                Ignored
                says:

                Roger,

                what it comes down to is this: do you want handicapped people to be able to go anywhere, or shoudl there be places where people essentially post “no handicapped here” — in return for cheaper rates, naturally, as there are more hotel rooms.

                Perhaps 1 in fifty hotels would be outfitted for handicapped, if they were allowed to NOT do so. If you want, I can pull more information…

                 Report

              • Avatar Jaybird in reply to Roger
                Ignored
                says:

                Kimmi, what about people with Chlorine allergies? Do you care about them?Report

              • Avatar Roger in reply to Roger
                Ignored
                says:

                Kimmi,

                We are not talking about hotels, we are talking about hotel pools. I bet one person in a hundred even uses the pool at a hotel. I am a daily swimmer, and I bet I have used less than 1% of the pools at hotels I’ve stayed at.

                If we certified some hotels as handicapped accessible what proof do you have that this won’t lead to plenty of solutions. What makes handicapped swimmer customers so different from every other market niche?

                Has anybody even tried to quantify that this is even a problem? What percent of American hotel goers are handicapped people tht plan to use the pool? One out of a thousand? A million? Does it matter to progressives. Of course not.

                Progressives run amok! Again.Report

    • Avatar trizzlor in reply to North
      Ignored
      says:

      Agreed, the law sounds silly. But ideally we would judge any ADA regulation based on the extent of the problem and the cost of the fix, not just the latter – something the Examiner article makes no attempt to do.Report

  7. Avatar Jaybird
    Ignored
    says:

    Ironically, on this day in 44BC, Julius Caesar was killed because he didn’t care about whether the handicapped had access to the baths.Report

  8. Avatar BlaiseP
    Ignored
    says:

    Tort lawyers get down on their knees and thank the Good Lawd every night for swimming pools.Report

  9. Avatar Rufus F.
    Ignored
    says:

    First, they came for the good parking spaces, but I like to walk in parking lots, so I said nothing…

    Then, they came for the public pool owners, but I hate swimming in little kid urine, so I said nothing…

    (Sorry! It was too easy)Report

  10. Avatar Tod Kelly
    Ignored
    says:

    Tim, a great post as usual.

    I find myself baffled as to what the DOJ was thinking with this ruling.  It seems to me to be the perfect counterweight to the “all govt regulation is bad!” trope.  We work with a lot of social service agencies that serve the disabled, and I can tell you there are so many thing that really need to be addressed in most communities – and this just isn’t one of them.  This is far worse than a waste of money and resources – and that’s certainly bad enough.  This is the kind of regulation that will make the public weary of any kind of future regulation or funding concerning the disabled, and will actually make things wore for them in the long run.

    I know it isn’t the case, but when I read stuff like this I always think, “This is what a Randian Objectivist would implement to sway the people to their cause.”Report

    • Avatar James Hanley in reply to Tod Kelly
      Ignored
      says:

      Excellent point, Tod.  Unfortunately, the way the system works is that those questions aren’t properly in the DOJ’s purview–they were asked for clarification, so they clarified. In that sense, they did their job well–the rule is quite simple and clearcut, so it’s very easy for pool operators to know if they’re in compliance or not.

      But, yeah, backlash isn’t just a Bad English album.Report

  11. Avatar BSK
    Ignored
    says:

    Has anyone else been getting a lot of these lately:

    “Error establishing a database connection”

    ???Report

  12. Avatar Liberty60
    Ignored
    says:

    Before everyone starts hyperventilating about Pool Gestapos-

    Here are the actual DOJ guidelines

    They were debated, discussed and modified several years ago, during which time property owners and busienss groups had plenty of representation.

    The guidelines were passed in 2010 and had 2 years for compliance; its not like they suddenly spung this on anyone.

    The reason this has recently come to light is that the American Hotel & Lodging Association has been petitioning the DOJ for clarification to the rules; here is the summary from the AHLA.

    The issue circles around whether access to pools must be fixed lifts or the wheeled kind; Here is the meat of the DOJ response reprinted from the hotel owners website:

    DOJ has determined that lifts need to be available at each pool at all times when a pool is open to the public. In addition, only “fixed” lifts are acceptable unless a hotel can demonstrate that installing such a lift is not readily achievable.  In that case, a portable lift would be allowed as long as the lift is securely in place during all operating hours. In the context of discussing pools owned by state and local governments, DOJ stated that sharing lifts between two pools is not allowed unless the entity can show an “undue burden.” 

    The squishy part, and the only part that I see as a reasonable concern on the hotel owners part is this:

    DOJ’s explanation of what is “readily achievable” makes clear that no lodging facility will be able to determine whether it can rely on this defense.  DOJ states:  “Determining what is readily achievable will vary from business to business and sometimes from one year to the next” and goes on to list some, but not all of the regulatory factors to be considered.  DOJ failed to mention that “legitimate safety considerations” are to be considered in the “readily achievable” analysis.     

    As an architect I can understand that not having a clear “safe harbor” is problematic. Then again, “undue burden” is as open to abuse by defendants as litigants.

    Which is why it seems ironic to me, in that it is the DOJ that is being reasonable in all this; the guidelines were left ambiguous with words like “reasonable” and “readily acheivable” and “undue burden” for the purpose of allowing variation to suit particular cases.

    The interested parties- disabled rights groups, property owners- are the ones pushing for a maximalist “all or nothing” approach. And in this case, the hotel owners got stung with an adverse ruling.

     Report

    • Avatar James Hanley in reply to Liberty60
      Ignored
      says:

      Liberty,

      To copy myself from further up the page, the date at which the regs were initially proposed is irrelevant–nobody could know what they needed to do until the final regs were promulgated.

      And waiting a year after the final regs were promulgated to ask for clarification is not necessarily relevant, either, because it appears that the final reg wasn’t clear enough, so that lots of folks thought they could satisfy the reg with X, then suddenly started hearing rumors about Y, so they asked for a clarification when they realized they might be wrong.  So, yeah, in a way the feds really did spring this on them.

       Report

    • Avatar DensityDuck in reply to Liberty60
      Ignored
      says:

      “…it is the DOJ that is being reasonable in all this; the guidelines were left ambiguous with words like “reasonable” and “readily acheivable” and “undue burden” for the purpose of allowing variation to suit particular cases.”

      Ah-heh.  Describe some reasons why it would ever not be reasonable to install a permanent lift.  Make sure to pick reasons where “then you can’t have a pool” is not the logical next statement.

      Unless your attitude is that “nobody gets to use it” is the next best thing to “everyone gets to use it”.Report

      • Avatar Liberty60 in reply to DensityDuck
        Ignored
        says:

        I have actually done this; it is not uncommon for property owners to claim “undue hardship” in compliance with building or zoning codes.

        Examples might be where the installation of a lift would present a hazard to swimmers. Or for example, where there is inadequate electrical supply which would necessitate adding a new circuit, or where it would be necessary to break out a larger amount of concrete decking than normal.

        Again; there are plenty of defenses to litigious wheelchair advocates. But saying “I don’t wanna” isn’t one of them.

        And James, the DOJ has already said they are not enforcing these immediately, as a further effort at being reasonable.Report

        • Avatar DensityDuck in reply to Liberty60
          Ignored
          says:

          For the DOJ to claim that it’s “being reasonable” by not enforcing it doesn’t change the fact that they’ve still declared that ADA compliance requires permanently-installed powered lifts, which (per the Unruh Act) means that private citizens can sue pool owners for noncompliance. 

          “Examples might be where the installation of a lift would present a hazard to swimmers.”

          That’s what hydraulics (or mechanical chain-driven devices) are for.  “But those are nonstandard and really expensive!”  Well gosh that sounds a lot like “I don’t wanna”.

          “[O]r where it would be necessary to break out a larger amount of concrete decking than normal.”

          Oh heaven forfend that someone would have to ruin the carefully-balanced aesthetics of their exclusive normals-only pool by making more decking than normal.Report

          • Avatar Liberty60 in reply to DensityDuck
            Ignored
            says:

            Are you doing battle with the imaginary stormtroopers in wheelchairs, or the ones that really exist?Report

            • Avatar Roger in reply to Liberty60
              Ignored
              says:

              The real storm troopers look a lot like you, Liberty. What size Jackboot are you wearing these days?Report

            • Avatar DensityDuck in reply to Liberty60
              Ignored
              says:

              “Are you doing battle with the imaginary stormtroopers in wheelchairs, or the ones that really exist?”

              The problem is that you think you’re being reasonable and helping me find ways to work within the law, but you aren’t the person I’d be dealing with.  If this hypothetical person were complaining based on this DoJ ruling, then they would use exactly the arguments I’ve presented here.  You say “there are plenty of defenses to litigious wheelchair advocates”, but the fact of the matter is that there actually aren’t.

              I give you the example of the Squeeze Inn, whose entire gimmick was that it was small, and it was shut down by ADA lawsuits spawned by the fact that it was small.Report

  13. Avatar Will H.
    Ignored
    says:

    Public pools are an indispensable public good.
    Public pools give people a place to pee who would otherwise not have a place to pee.
    Having a place to pee is an inalienable human right.
    Handicapped people should not be forced to pee from the side of the pool.
    They should have a big grappling hook that swings down so that they can pee in the pool just like everyone else.Report

  14. Avatar Scott
    Ignored
    says:

    The DOJ has now put a 60 day hold on the enforcement of its moronic policy.Report

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