By Kara Maciel and Jordan Schwartz

As you know if you are a reader of our blog, in 2010 the U.S. Department of Justice (“DOJ”) published updated regulations under the Americans with Disabilities Act (“ADA”), which adopted the 2010 Standards for Accessible Design (“2010 Standards”). As we explained here, the 2010 Standards contain specific accessibility requirements for a number of types of recreational facilities, including swimming pools, wading pools and spas. As we also reported in this blog here, while the effective date of the 2010 Standards generally is March 15, 2012, in response to public comments, the DOJ extended the date for compliance for the requirements related to the provision of accessible entry and exit to existing swimming pools, wading pools and spas to January 31, 2013.

During the several months, issues surrounding portable v. fixed pool lifts have been at the forefront of these new swimming pool regulations. The 2010 Standards for pool lifts require lifts to be fixed and to meet additional requirements, including location, size of the seat and lifting capacity. Thus, to the extent it is “readily achievable,” a pool owner and operator must provide a fixed lift that meets all of the 2010 Standards’ requirements.  There is, however, a new type of “safe harbor” for businesses who purchased a portable, non-fixed lift prior to March 15, 2012. Because of a misunderstanding by some pool owners regarding whether the use of portable pool lifts would comply with barrier removal obligations, the DOJ has confirmed that as a matter of prosecutorial discretion, it will not enforce the fixed elements of the 2010 Standards against those owners or operators of existing pools who purchased portable lifts prior to March 15, 2012, so long as those lifts otherwise comply with the requirements of the 2010 Standards. Notably, one such requirement is that the pool lift remains in place and be operational during all times that the pool is open to guests.

It is important to note that this “safe harbor” does not exist for any companies that purchased a portable pool lift after March 15, 2012. Indeed, if a portable lift was purchased after March 15, 2012, the obligation to remove barriers is ongoing, and an employer has an obligation to provide a fixed lift that meets all of the 2010 Standards’ requirements the extent it is readily achievable to do so.

While good news for some pool owners, it is worth reminding that there are significant risks of non-compliance with the 2010 Standards, including the threat of lawsuits and complaints from “drive-by” plaintiffs. Moreover, the DOJ may obtain civil penalties of up to $55,000 for just one ADA violation, and penalties up to $110,000 for any subsequent violation.