ADA: Everyone out of the pool

by Walter Olson on March 14, 2012

Unless hotels have moved to install expensive and cumbersome wheelchair lifts, they face new fines and litigation exposure under new Americans with Disabilities Act (ADA) regulations taking effect today. I explain why many pools will close as a result — and trace some of the ideological background — in my new post at Cato at Liberty (& Adler, Alkon, Frank, Adam Freedman/Ricochet (“the regulators have truly gone off the deep end,”) George Leef/Locke).

More: Notwithstanding my comments about Congressional Republicans being unhelpful, Sen. DeMint has filed a bill that would prevent the regulations from taking effect on their March 15 date. [Daily Caller] And Prof. Bagenstos defends the regulations in a way that I much fear will mislead newcomers to the topic. He emphasizes, for example, that hotel payouts resulting from federally mandated damages to complainants are for the moment unlikely. But as we know, the incentive of (one-way) attorneys’ fees has all by itself been enough to fuel a sizable volume of ADA complaint-filing, while in states like California the availability of piggyback damages under enactments like the Unruh Act turn many nominally zero-damage federal cases into highly profitable extraction propositions. As for the limitation of exposure to what is “readily achievable,” the USA Today report illustrates how uncertainty over the meaning of that term can leave pool operators exposed to risky and high-cost litigation. In the real world, fixes that wipe out the economic viability of a given pool (or the facility of which it is a part) are indeed asserted by advocacy groups to be “readily achievable.” That makes it cold comfort that some facilities can stave off liability for the moment by pledging to install the equipment by some future date.

{ 2 trackbacks }

Hotel pools and the ADA: a 60-day deadline extension
03.16.12 at 6:36 am
From comments: web accessibility trips up a state medical board
03.19.12 at 12:12 am

{ 10 comments }

1 Mark Biggar 03.14.12 at 3:51 pm

talk about “Dog in the manger”

2 DEM 03.15.12 at 9:18 am

And once again, an obsessive focus on “equality” will mean an amenity once available to about 99.5% of the public will now be available to no one. These ADA zealots can now rejoice in the fact that the handicapped will no longer have to sit beside a pool watching others swim, as no one will be swimming at all. What joy. Harrison Bergeron, call your office . . .

3 marco73 03.15.12 at 1:48 pm

Advocates say: “hotel payouts resulting from federally mandated damages to complainants are for the moment unlikely.”
Really? Ask the theater chains how well trying to comply with ever shifting ADA requirements worked out for them. The chains spent a whole pile of money trying to comply, paid off a bunch of complainants (and their attorneys), and still had to shut down theaters that were not deemed perfect.

4 Hugo S. Cunningham 03.15.12 at 2:35 pm

ADA advocate: “hotel payouts resulting from federally mandated damages to complainants are for the moment unlikely”

Let them prove it by putting in a modest cap on *total* damages and fees binding on both Federal and State legal systems, so that hotels and others can be *sure* that the first visit by an ADA activist or attorney will not be ruinously expensive. Once the hotel is “caught” and assessed a *modest* affordable fine, then they can negotiate with the activists whether an affordable “accomodation” can be agreed on, or whether to shut the pool.

5 Chris Hoey 03.15.12 at 10:31 pm

I trod the halls of congress for hours upon end, and testified on behalf of the American Retail Association (now the National Retail Federation) when this bill was being considered in 1989. Among other things, I and my cohorts from the retail industry and other business associations pointed out the imprecise language and lack of specific guidelines would result in a bill impossible of compliance not only in the employment area, but more so in the Public Accommodations area, where the DOJ, like HHS today in Obamacare, would have unfettered powers to determine how businesses would operate. Since its passage, a lot of the fears we addressed have come to fruition, with no end in sight. It has reached the point where one can make a strong case that the DOJ is in violation of the takings clause, rather than wait for congress to correct this mistake. The consequences of this otherwise altruistic Act of Congress have proved an unwarranted burden on free enterprise, as well as public accommodations.

6 Richard Nieporent 03.16.12 at 6:38 am

The consequences of this otherwise altruistic Act of Congress have proved an unwarranted burden on free enterprise, as well as public accommodations.

Chris, that is a strange definition of altruism. Altruism is when you do a selfless act for someone, not where you force someone else to do it.

It was obvious that this bill was a disaster from the start. Worse, the ostensible reason for ADA – to increase the employment rate of disabled people – has not been realized. Instead the government focuses on imposing costly mandates on business so that we can pretend that we are doing something to benefit handicapped people.

7 Hugo S. Cunningham 03.18.12 at 2:12 pm

Another ADA-style folly, but probably based on State law:

http://www.bostonglobe.com/metro/2012/03/17/once-model-state-medical-board-lags-badly/VDtX7T3JP5ivpAMdkIg3eL/story.html
[Quoted text copyright (c) 2012 by the Boston Globe
[...]
>Another major omission has resulted from a Catch-22-like requirement in state law. Russell Aims, the … chief of staff
[of the Massachusetts Board of Registration in Medicine], said the board used to post digital copies of its disciplinary orders [for medical malpractice]. But an online accessibility law requires that documents be available in a text-to-speech format for the visually impaired.

>Because the PDF format of the disciplinary records is not compatible with text-to-speech software, Aims said, the law dictates that such records cannot appear in the database. If the visually impaired cannot access the information, then no one can.
[end of quoted text]

8 Roger 03.25.12 at 11:49 am

The ADA Pool that is not a portable unit is a bad idea in most public pools.

The pool lift is a danger to our youth. When you add a pool lift to a pool, you will have added an unnecessary danger that will endanger our children. If you have been around pools with young kids you have seen them jump before they look at what or who is in the water. When the child lands on another person, at least the other person some is what soft and have some give to them. Now we are going to add something metal into the pool that the children can hit when entering the pool and can injury themselves on. When the chair is in the pool it will become an entrapment danger and when out of the water, it will be inviting to kids to clime on and jump off into the shallow end of the pool. This device could become the reason some child will end up in a wheel chair!

9 Robert 03.25.12 at 12:09 pm

Roger’s point is a very good one.

I badly twisted my toe all because Secretary of State James Baker’s children were irresponsible parents.

See, these criminally-negligent (IMHO) parents left their 7 year old unattended in a hot tub and she got stuck to the drain

http://www.poolsafely.gov/pool-spa-safety-act/virginia-graeme-baker/

So now hot tubs (and pools, too, for good measure) have to have these “drain covers”. Think of those little plastic “tables” that pizza delivery companies put in the middle of the pizza. Little devices like this are over the drain.

I got my big toe wedged between the cover and twisted it badly. In fact I thought it was broken. The entire nation of adult spa users now has to have this toe-catcher in their hot tubs because some parent couldn’t accept responsibility for letting their daughter die; and their father–who happened to be Secretary of State–abused his power to absolve their guilt by getting a law passed.

This is one of the biggest outrages of the past decade.

10 adam zur 03.26.12 at 10:17 am

Is not ADA simply against the constitution? It gives the Federal governmental power to use private property without just compensation?
Why was this not ruled against the law?

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