Summer is around the corner, when thoughts turn to sunshine, vacations, and hanging out and having fun at the community pool. Unless you are a community association board member or community manager. In that case, your thoughts likely turn to locking in pool contracts, making pool repairs, ordering supplies, updating pool policies and lifeguard orders, and figuring out and distributing this year’s pool passes. With the growing checklist to get ready for pool season, let’s throw in one more item: ADA compliance.
ADA compliance? Whatever do you mean? This is a community association and our facilities are privately owned?
Oh yeah? Do you sell memberships to neighboring communities? Do you allow the local lodge to rent out the pool for their annual summer frolic? Do you charge a fee, or take a cut of the proceeds and/or concessions to host swim meets? If so, your pool may be subject to Title III of 42 U.S.C. 126, the Americans with Disabilities Act of 1990 (“ADA”).
The ADA and Standards for Accessible Design
In 2013, the 2010 accessible pool design requirements of the ADA Standards for Accessible Design (“Pool Standards”) went into effect for existing pools. Under the Pool Standards, pools in excess of three hundred (300) linear feet (with some exceptions) must provide two (2) accessible entry points into the pool. The entry points should be in different locations, and can be made of lifts, sloped, entries, transfer walls or accessible pool stairs. For wading pools, spas and swimming pools under three (300) linear feet, there must be one accessible entry point.
Since going into effect, there has been confusion and questions among community associations about whether the new “Pool Standards” apply to their association’s pool, especially when there are outside memberships and/or swim teams involved. How you use your pool and who has access may affect whether or not your association needs to comply.
Who Needs to Comply?
Whether or not your association must comply with the Pool Standard depends upon if the pool area in question is considered a place of “public accommodation” as contemplated by Title III of the ADA. Title III of the ADA applies to private entities and facilities and defines a “public accommodation” as a facility whose operations affects commerce and fall within one of 12 specified categories of the ADA. For associations, the relevant category is “places of exercise or recreation.”
The key in determining whether or not your private pool and/or facilities is considered a place of public accommodation is if the use of the pool or facility generates income for the association. Or, in ADA-speak, “affects commerce.” Associations that sell outside pool memberships and/or rent their facilities to the general public are likely subject to the ADA and the Pool Standards. Those that restrict the use of its swimming pool and facilities to only its members and their guests are likely not subject to the ADA.
Swim Teams and the ADA
But, how are swim teams figured in to determining whether or not the association is subject to the ADA? After all, swim teams often involve public swim meets held at the pool and may involve non-association team members. The existence of a swim team does not automatically subject the association’s pool to the ADA. Again, it comes down, in part, to whether or not the swim team and the use of the pool affects commerce.
The first thing to look at is the construction of the swim team. Is it a separate entity from the association, or is it a committee or otherwise part of the association? If it is a separate entity, does it pay the association for use of the pool? Does it pay the association a portion of the revenue from concessions? Is the swim team comprised entirely of members of the association, or does the team allow non-association members to participate, and at what percentage rate? If the swim team is a separate entity, comprised largely of non-association members who pay the association for the use of the pool, then the pool in question is likely subject to the ADA.
However, if the swim team is part of the association and restricts membership on the team to primarily association members and is not required to pay a rental fee for the use of the pool, the pool in question is likely not subject to the ADA.
But what if the swim team holds swim meets at the association’s pool? The use of an association’s pool facilities for swim meets seems to cause the greatest concern and angst among associations, as it is not clear from the ADA, or its regulations, whether a swim meet, which occasionally causes the association’s swim facilities to be accessible by non-members of the association, converts the otherwise private facilities into a place of public accommodation.
The ADA and the courts have not provided much in the way of guidance. However, what guidance there is indicates that under the right circumstances, a community association’s pool can be occasionally used for swim practices and/or swim meets, involving non-association members, and still be exempt from Title III of the ADA. However, the odds of being deemed a public accommodation go up when the association is receiving income from the swim team, the swim meets and/or swim practices.
Before your association dissolves the swim team, or goes out and purchases pool lifts, it should consult with the association’s legal counsel to determine whether or not it falls within the ADA Pool Standards. It may be that the current use does not trigger the ADA, or it may require significant changes to the association’s policies and procedures. In any event, before the summer pool season kicks off, a full review of the use of the pool facilities is probably in order.
By Sara J. Ross, ESQ.
Sara is an attorney at Chadwick, Washington, Moriarty, Elmore & Bunn, where she has practiced community association law for fifteen years. She has been an active member of CAI. Sara has served on five different WMCCAI committees, several subcommittees and a task force, and served as committee chair for the Membership and Marketing Committee in 2005. Since 2017, Sara has been the co-chair of the Public Outreach Committee. She was awarded the Rising Star Award in 2005. Sara also writes articles for Quorum and other trade publications as well as speaks at chapter education sessions.