New ADA Guidelines Expose Pool Operators to Private Lawsuits

The Washington Examiner reports that, according to a DOJ guideline issued January 31 interpreting a provision of the ADA, all operators of publicly accessible swimming pools—including cities, HOAs, hotels, spas, and gyms—must install a permanent fixed lift at a cost of $8,000 to $20,000 each.  If the facility has a separate pool and spa, lifts must be installed for each.  The guideline takes effect tomorrow, March 15, and could subject violators to stiff penalties and attorney’s fees.

From the Examiner:

In fact, most people in the swimming pool industry thought that one portable lift would be enough. Pool owners claim they were led to believe that, as long as they had one device that could be wheeled out whenever someone needed help getting into or out of a pool or spa, there would be no need intrusive permanent fixtures.

But then industry leaders began hearing rumors last year that Obama’s DOJ would require permanently fixed lifts for each pool and spa. They began to write letters to DOJ asking for clarification on the issue.

On Jan. 31 of this year, DOJ granted the industry’s call for a clarification: But it was not the answer they wanted. All 300,000 public pools in the United States must install a permanent fixed lift. The deadline for compliance is tomorrow, March 15. Call it “Poolmageddon.”

There is no way all 300,000 pools can install permanent lifts by Thursday. There simply are not enough lifts in existence or enough people who know how to install them, according to industry spokesmen. Plus, each lift costs between $3,000 and $10,000 and installation can add $5,000 to $10,000 to the total.

The Administration has assured the industry that it does not plan to enforce the new guidelines right away.  But the ADA contains a private enforcement mechanism, empowering private attorneys to bring suit immediately, collecting attorney’s fees from violators.  As the article mentions, trial lawyers contributed over $45 million to Obama’s campaign.

California-based businesses should be particularly worried.  The Unruh Civil Rights Act, itself a wellspring for abusive litigation, incorporates the ADA by reference, making any violation of the ADA also a violation of Unruh.  Since Unruh has more teeth than the ADA—$4,000 per violation, regardless of intent, plus attorney’s fees—the DOJ guideline may mean a very profitable summer for California trial lawyers.

UPDATE: Trizzlor points to this February 21 DOJ letter to the American Hotel and Lodging Association attempting to alleviate some of their concerns about compliance by the March 15 deadline (today).  The DOJ states:

“If a hotel or motel has more than one pool, it must remove barriers, to the extent that it is readily achievable, at each pool. If is not readily achievable to immediately provide an accessible means of entry and exit at every pool, then the covered entity must remove barriers to the extent that it is readily achievable to do so. It is important to note that the barrier removal obligation is a continuing one, and it is expected that a business will take steps to improve accessibility over time.”  The letter goes on to list various “factors” that must be considered to determine whether installation of the fixed lift is “readily achievable.”

This will be cold comfort to most operators.  But even if this gives some wiggle room against DOJ enforcement, pool operators have more than the DOJ to contend with.  When faced with a private attorney demanding $4,000 per violation under the Unruh Act, plus his attorney’s fees, a risk-averse operator is unlikely to toss the dice on the question of whether a judge looking at a laundry list of factors may or may not decide installation is “readilyachievable.”  He’s more likely to cut the check to the attorney and padlock the pool.

Trizzlor (ever helpful today!) also links to this DOJ article explaining the tax credits and deductions available to help businesses comply with the new guidelines.  This will take some of the sting out of the costs associated with compliance.  But it still won’t keep the trial lawyers off your back if you can’t get your lifts installed now.

UPDATE [10:35 a.m.]: Commenter Trizzlor also points out that most pool operators (except for those in California, as I explain below) can reduce their liability by preparing an “Implementation Plan” following a checklist provided by the ADA.  This does not mean that the DOJ can offer “waivers” or its own judgment on the question of whether compliance is “readily achievable,” however.  This is for judicial determination, and this is what will give private litigants leverage over operators who don’t want to incur the costs and risks of a lawsuit.

For example, from the DOJ’s checklist, the DOJ acknowledges:

the regulations do not define exactly how much effort and expense are required for a facility to meet its obligation. This judgment must be made on a case-by-case basis, taking into consideration such factors as the size, type, and overall financial resources of the facility, and the nature and cost of the access improvements needed. These factors are described in more detail in the ADA regulations issued by the Department of Justice.

The process of determining what changes are readily achievable is not a one-time effort; access should be re-evaluated annually. Barrier removal that might be difficult to carry out now may be readily achievable later. Tax incentives are available to help absorb costs over several years.

Here’s the important point from the next section in the DOJ paper:

The Department of Justice recommends the development of an Implementation Plan, specifying what improvements you will make to remove barriers and when each solution will be carried out: “Such a could [sic] serve as evidence of a good faith effort to comply.”

In other words, completing an “implementation plan” could serve as evidence in a lawsuit, but it won’t immunize anyone from a lawsuit.  Again, this is all the leverage trial lawyers need to subject even diligent and conscientious business owners to abusive litigation and shake down settlements.

And this was the real problem, underscored by the California Court of Appeal in the 2006 decision in Gunther v. Lin:

And it was precisely because it was so easy for businesspeople—particularly small businesspeople—to inadvertently violate the ADA that Congress limited the circumstances under which they might be sued for such a technical violation. Under the ADA, a private individual suing a businessperson has no right to damages absent intentional discrimination. . . .By contrast with the federal ADA, California’s section 52 allows private parties to seek damages, and in fact even provides for an automatic minimum penalty—now up to $4,000—when the statute is triggered.

. . . .

The alternative interpretation [allowing automatic penalties without a finding of intent], as a number of federal courts have already indicated (e.g., Doran v. Del Taco, Inc. (C.D.Cal. 2006) 2006 WL 2037942), has led to unconscionable abuses.

The Gunther case went on to hold that the automatic $4,000 penalties under California law were unavailable without the showing of intent required like the ADA requires.  But the California Supreme Court overruled that holding in its 2009 Munson v. Del Taco, Inc. decision.  Instead, lack of intent to discriminate (e.g., a “good faith effort to comply”) is irrelevant in finding a violation of the Unruh Act and awarding automatic $4,000 penalties plus attorneys’ fees.

Thus, the tendency of the DOJ guideline to increase lawsuit abuse is compounded here in California.  The remediation procedures that may help reduce (but not eliminate!) liability under the ADA don’t apply here since violations in this state are deemed automatic, regardless of motive, good faith, or due diligence.

UPDATE [10:48 a.m.]:  I gave an interview on KOGO San Diego in the 7:00 hour this morning.  http://www.kogo.com/pages/dablog.html.  Podcast is available here.