On February 8, 2012, Kevin Maher and Marlene Colucci of AH&LA, together with AH&LA’s outside counsel, Minh Vu and Virginia Robinson of Seyfarth Shaw LLP, met with six Department of Justice (“DOJ”) employees, including the Chief of the Disability Rights Section of the Civil Rights Division, to express the concerns and questions shared by AH&LA’s members regarding DOJ’s January 31, 2012 Guidance on pool lifts (the “Guidance”).
The following is a summary of the questions raised by AH&LA and the responses from DOJ.
Portable vs. Fixed Pool Lifts
1. What does “fixed” mean? Can a portable lift that can be locked into position be fixed? What about the type of lift where the lift is inserted into a permanently drilled sleeve in the deck? Is there a difference between “fixed” and “anchored”?
DOJ stated that “fixed means “attached.” DOJ explained that the lift must be attached to the deck in some manner so that if the space were turned upside down, the lift would remain attached to the deck. DOJ specifically stated that a portable lift with wheels that lock to prevent movement is not “fixed” unless it is attached in some other manner to the deck such as with clamps, screws or bolts. DOJ also stated that the lift that is inserted into a permanent sleeve anchored into the deck would be acceptable if the connection point was secured with screws, bolts, or clamps. One DOJ official stated that if the lift was attached in a manner that requires tools for its removal, it is fixed.
2. Why did the DOJ decide to require “fixed” versus portable lifts?
DOJ representatives stated that a fixed pool lift ensures that the equipment cannot be moved, and that the 2010 Standards covers fixed elements. On this point, the AH&LA expressed its view that there is no functional difference between a portable and fixed lift, and that nothing in the 2010 Standards states that a pool lift must be attached. The AH&LA also pointed out that the 2010 Standards’ equivalent facilitation provision supports the use of portable lifts.
3. If a pool already has a compliant portable lift so there is no existing “barrier” to access, does the hotel have to discard it and install a “fixed” lift? If you require hotels to discard an existing portable lift that was purchased before this Guidance came out, aren’t you penalizing the businesses that tried to comply in good faith based on a reasonable interpretation of the 2010 Standards?
The DOJ declined to answer this question.
March 15, 2012 Compliance Date
4. What is the significance of the March 15 compliance date? In other words, is that the date when accessible pool entries have to be in place unless they are not readily achievable, or does that date start the clock for readily achievable compliance efforts which can be completed after that date?
DOJ stated that hotel pools must be in compliance with the 2010 Standards by March 15, 2012 unless a hotel can demonstrate that it is not readily achievable to achieve compliance.
DOJ also noted that even if compliance is not readily achievable in one year, it may be readily achievable in the next if circumstances change. If the date to be in compliance is March 15, 2012, will DOJ consider granting an extension of the compliance deadline considering that the Guidance was a complete game changer for most hotels which thought that a portable lift would be acceptable?
AH&LA explained that the extension is necessary because the industry, based on a reasonable interpretation of the 2010 Standards and the representations of pool lift manufacturers, believed that a portable lift would meet the requirements but sought confirmation from the DOJ as early as October 2011.
The DOJ provided no guidance until January 31,2012. AH&LA advised DOJ that even if its members diligently move forward with the purchase and installation of fixed lifts, it will be virtually impossible for them to have lifts in place by March 15, 2012 because the installation of a fixed lift requires extensive work, including the hiring of a contractor, electrical permits, demolition and reconstruction of parts of the pool.deck, and compliance with electrical bonding requirements.
While DOJ did not agree to an extension in the meeting, DOJ representatives seemed unaware of the electrical bonding requirements that make the fixed lift installation so complicated. We urged them to reconsider the compliance deadline.
If no general extension is possible, will DOJ consider specific circumstances that would delay compliance, like lift and contractor availability for installations?
DOJ stated that it would consider the level of diligence a hotel exercised in trying to meet requirements from the time the regulation was published in 2010 but did not agree that there was only clarity as of last week.