Under ADA, public pools now required to provide handicapped access

Talk about it

Today is the first day that most public pools and spas must have permanent lifts, according to Americans with Disabilities Act guidelines. Not all do now, but most will soon or face possible fines or lawsuits.

Dave Helleloid, co-owner and manager of the Mitchell Comfort Inn & Suites and the Days Inn, said the lifts cost about $2,000 apiece, although some report them costing far more than that.

The two motels Helleloid manages in Mitchell each have a pool and a spa, so adding the lifts will cost him around $8,000, he said. A spa is another term for a hot tub.

Helleloid said he feels having a mobile lift that could be used in either the pool or spa would reduce his cost by half, but he has been told that will not be allowed.

U.S. Rep. Kristi Noem discussed the new requirement during a stop Monday in Mitchell. Most people are not aware of it, she said, but hotel and motel owners definitely are.

Noem, R-S.D., said the ADA is a positive thing, and the lifts are a good idea, but she is surprised there is no flexibility, like allowing a hotel to have a mobile lift for use in more than one pool or spa.

Jordan Stoick, Noem’s chief of staff and interim spokesman, said Noem has joined with 67 other representatives to ask for some changes, including a 180-day extension on the deadline.

“Kristi supports the intent of this requirement but doesn’t believe it’s workable in its current form,” Stoick said. “After hearing from a number of hotel and lodge owners and operators in South Dakota, she has asked the Justice Department to extend the compliance deadline by 180 days so that a more workable solution can be implemented.”

Helleloid was at the meeting Monday and thanked Noem for her efforts.

Some might close

Dave Halder, general manager of the Kelly Inn in Mitchell, is on the board of the South Dakota Innkeepers Association.

Halder said hotel and motel owners and managers have asked for some assistance from their lawmakers.

“I think we’re just working with Kristi and other legislators to get clarity on what we’re supposed to be doing,” he said.

But while they are waiting for assistance, they are ordering the lifts. The Kelly Inn has a pool and a spa and Halder has ordered lifts for both. He said they will cost in excess of $2,000 apiece.

There are published reports of some hotels and motels closing their pools and spas, but Hader said he’s not aware of any South Dakota inns that are doing that.

Michele Brich, executive director of the South Dakota hotel/motel group, said the new regulation is having an impact.

“Numerous South Dakota hotels are installing the permanent lifts, but I expect some will close their water facilities or won’t open them this season,” Brich said in an e-mail.

Facilities open for a short season, such as some in the Black Hills, might choose to close their pools and spas, she said.

“While the ADA has an exception if it is not financially feasible, it doesn’t provide guidelines for what circumstances would qualify. The industry wants to meet the needs of all travelers,” Brich said. “However, allowing portable/shared lifts would make more sense both financially and from a safety perspective.”

Fairness for all

Some feel the lifts, as well as pool entries that are gently sloped to allow easier access, are a simple matter of fairness for all.

LifeQuest Executive Director Daryl Kilstrom said he will always come down on the side of those in need of support.

“In the world of human services, the question is always going to be finding a balance between idealism and realism,” said Kilstrom, whose organization assists people with developmental disabilities. “I don’t think the ADA has driven many businesses out of business.

“We have to make decisions daily on what we can do and what we’d like to do,” he said. “It all boils down to money.”

The new regulations were put into place Sept. 15, 2010, and go into effect today.

In January, the Department of Justice determined that inns, hotels and motels are “public accommodations” under the Americans with Disabilities Act, and must comply with the regulation.

Title III of the ADA states that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the services, facilities or privileges of a place of accommodation.

The pool lifts must be operable by people with disabilities, must be in good condition and any battery components have to be charged for use. The staff working at the hotel/motel or any other facility must be fully trained in how to use the lifts safely.

Xochitl Hinojosa, a spokeswoman for the U.S. Department of Justice Civil Rights Division Disability Rights Section, said there is no criminal penalty for not installing the lifts, but a civil penalty may be pursued.

That could mean a fine of up to $55,000, Hinojosa said.

“The department will investigate complaints if we learn that a pool is not in compliance,” she said in an e-mail to The Daily Republic.

Helleloid said he has ordered the lifts but has been told there is a three-month wait because so many businesses are buying them.

Hinojosa said the government will likely give people and businesses time to purchase and install the lifts if compliance is “not readily achievable at the time.”

Lawsuit magnet?

The hotel/motel association also argues that the lifts are a potential hazard to the health of guests and a possible lawsuit problem.

“The DOJ ruling that a lift must be in place at all public hours creates a dangerous and litigious condition,” a letter from the association to the South Dakota congressional delegation states. Concerns include the improper use of the devices, such as a child suffering an injury while playing with a lift.

“Allowing the hotel operator to provide with short notice a portable lift will allow the hotel operator to control who has access to the lift and that it is property used,” it states. “The inability to do so, as DOJ has required, will open our industry to costly lawsuits or force South Dakota hotels to hire numerous employees who are assigned the sole task of ‘lift watching.’ ”

Sen. John Thune, R-S.D., said he is keeping an eye on the issue.

“I have heard from several South Dakota hotel and motel owners who have expressed concern about this rule and the impact it will have,” Thune said in an e-mail to The Daily Republic. “They have expressed that the rules are overbroad, inflexible and unclear.

“Last week, I joined several of my colleagues in a bipartisan letter to the Department of Justice asking them to delay the compliance date and work with stakeholders to make sure the standards are more clear,” he said.

Perry Plumart, communications director for Sen. Tim Johnson, D-S.D., said the hotels and motels aren’t being forced into this too suddenly.

While new facilities must comply with ADA requirements, existing facilities have a “soft landing” to do what is “readily achievable,” Plumart said.

“If they are not able to meet the cost of compliance immediately or have invested in a portable lift and have a long-term plan to comply, they’re fine,” he said.

“Senator Johnson believes it is worthwhile for everyone to have access to recreational opportunities,” Plumart said.

Interpretations differ

The rules are also in place for public pools owned by cities, school districts, counties and other agencies, but they are slightly different, Hinojosa said.

“State and local governments must make recreational programs and services, including swimming pool programs, accessible to people with disabilities,” the ADA requirements state. “Public accommodations must bring existing pools into compliance with the 2010 Standards to the extent that it is readily achievable to do so.”

Mitchell Parks and Recreation Department Director Dusty Rodiek said he was not aware of the new requirement until he was contacted by The Daily Republic, but quickly studied the issue.

“We are in compliance,” Rodiek said. “Right now, we’re in compliance because the indoor pool has one.”

But the city Rec Center has a spa that does not have a lift, he said. Rodiek said he is discussing that with the manufacturer for guidance whether a lift is available for the hot tub.

The outdoor Mitchell Aquatic Center will also be completely equipped, he said.

There is a zero-depth entry to the pool there and a hydraulic lift will be affixed to the pool when it opens each day. That should bring that facility into compliance, Rodiek said.

“As far as our outdoor center, I believe we can use our existing lift,” he said. “That will meet the requirement.”

Parkston Finance Officer Brenda Huether said the city is willing to buy such a lift, but the city engineer told her it is not required to do so.

Huether said the way the engineer read the law, it was only for new and remodeled pools, not for existing ones. That differs from what the Department of Justice spokeswoman told The Daily Republic. Huether said she will continue to look into the issue.

Chris Huber/Republic Ashlee Horn, general manager at Ramada Inn and Suites Conference Center in Mitchell, said a new regulation means she will probably have to buy three or four pool lifts.

Chris Huber/Republic

The indoor pool at the Mitchell Recreation Center already has a hydraulic lift, pictured here, but the city may have to buy another one for its spa at the center.

Tags: swimming pools, americans with disabilities act, news, updates, ada, pools, handicapped, lifts