[Durham INC] Fw: New Pool Requirements - Update

Tue Nov 27 15:10:39 EST 2012

Here is important information for Homeowners Associations regarding updates to regulatory requirement changes (state and federal) for public pools.

If you are a member of an HOA and your planned community has a pool and/or planning changes to it your board of directors should be aware of these updates.

Mike Shiflett

ps-I received this post as a member of CAI (Community Association Institute) and I asked Jim if I could post this to the INC listserve as a courtesy to our members. He agreed (see below). 

----- Original Message ----- 
From: Jim Slaughter 
To: Jim Slaughter 
Sent: Tuesday, November 27, 2012 11:24 AM
Subject: New Pool Requirements - Update

Late November may seem like a strange time to discuss pools, but there have been North Carolina developments worth sharing.  

As you may recall, changes to the ADA (Americans with Disabilities Act) for public pool facilities were issued in 2010 to be effective March 15, 2012, with the intent that public pools be more handicapped accessible (see prior e-mails below).  In May the Justice Department extended the compliance deadline for existing public pools to January 31, 2013 "to provide additional time for compliance and to respond to concerns and misunderstandings about the standards."  Generally, the new ADA requirements do not apply to existing pools at homeowner or condominium associations due to the ADA definition of "public accommodations" (again, see details below), so many community associations haven't closely followed the new requirements.  (NOTE: ADA issues are separate from Fair Housing Act Amendment (FHAA) issues, where a handicapped owner can request a "reasonable modification" to make necessary changes at the owner's own expense.)

This fall several North Carolina associations have been told that modifications to their existing pools require that they comply with the handicapped accessible guidelines of the ADA despite the fact that the pools were pre-existing, the associations have never been considered public, do not sell pool memberships, and do not host swim meets.  After some inquiries, it has become clear that such statements are not directly related to the new ADA guidelines, but are the result of lesser known changes to the NC Building Code.  According to the state's Chief Accessibility Code Consultant, after June 1, 2012, the new constructions of all pools and alterations of all existing pools (public or private) "are required to comply with the 2012 NC Building Code and the 2009 ANSI A117.1.  The ANSI A117.1 requirements parallel the provisions that the 2010 ADA has for retrofit of existing pools."  So what does this mean?  Some associations that have been required to make repairs or alterations to their pools requiring a building permit have been told that no permit will be issued unless the existing pool is brought into compliance with handicapped accessible guidelines in line with the ADA.   

Obviously, facts vary from case to case and this e-mail is not intended as advice for a specific situation.  Also, state codes and interpretations of state codes can change.  At present, however, you should be aware that if you attempt modifications to your pool that require plans and permitting, it is likely you will be told the current NC Building Code requires the pool to adhere to the new ADA guidelines.  Otherwise, the plans will not be approved.  What sorts of pool changes require a permit?  That is also a topic of discussion, but a permit will likely be needed for increasing the size of the pool, adding pools, changing the shape of a pool, changing the type of filtration system, or other significant construction in the pool area.  Lesser repairs or replacements of existing equipment, like replacing a diving board, will likely not trigger the new requirements, but that could vary by jurisdiction.

In the event you decide your pool may be governed by the new ADA requirements (e.g., the association rents out the pool to the public, sells memberships to non-owners, hosts swim meets, a building permit is required for modifications, etc.), the Justice Department has now set up a "Questions and Answers: Accessibility Requirements for Existing Swimming Pools at Hotels and Other Public Accommodations" that may be of interest.

As always, if you have any questions about a specific issue, feel free to contact one of our attorneys.

Jim

From: Jim Slaughter 
Sent: Thursday, May 24, 2012 3:51 PM
Subject: New Pool Requirements - Update

In March I forwarded the following update regarding ADA (Americans with Disabilities Act) changes for public pool facilities effective March 15, 2012.  That e-mail noted that the outcry and confusion over the guidelines led the White House to issue a 60-day extension that pushed compliance for pool lift requirements to May 15, 2012.  The Justice Department also published a Notice of Proposed Rulemaking with a 15-day comment period "on a possible six-month extension in order to allow additional time to address misunderstandings regarding compliance with these ADA requirements."

This past week the Justice Department extended the compliance deadline for existing pools under the new ADA Standards to January 31, 2013.  This extension was deemed "necessary to provide additional time for compliance and to respond to concerns and misunderstandings about the standards."  Also, the Department has announced that it will release a "technical assistance document" in the near future to assist pool owners with the new requirements.

In case you are interested, more information on the extension, pool requirements, and 2010 ADA Standards can be found at http://www.justice.gov/opa/pr/2012/May/12-crt-649.html. 

Jim

From: Jim Slaughter 
Subject: New Pool Requirements

Have you been hearing about pools lately?  Could be the warm weather.  But perhaps it's the scary articles about new federal pool regulations with titles like "The Pool-calypse" or "Poolmageddon" (yes, really).  You may have the impression that every association pool needs extensive pool upgrades to comply with federal changes.  The reality is not quite so clear.  This e-mail examines the new pool requirements and surrounding issues.  (As usual in the HOA/condo world, facts vary and your situation may be differ.  Feel free to contact us with specific questions.)

ADVANCE WARNING: The current situation is confusing.  Reading this e-mail will be like swimming 20 laps in an Olympic pool!

Changes to the ADA (Americans with Disabilities Act) for public pool facilities were issued in 2010 to be effective March 15, 2012.  Without getting too specific, public pools have to be more handicapped accessible.  Pools with a perimeter of less than 300 feet must have at least one accessible means of entry, either a lift or sloped entry.  Pools with a perimeter of 300 feet or greater must have two accessible means of entry.  Such "means of entry" can include a lift, sloped entry with handrails, transfer wall with grab bar, transfer system with steps, or accessible pool stairs.  The most common means of entry are slope entries and lifts.  These details are the easy part.  

A first issue for an HOA/condo is whether the association pool is "public" under the ADA.  Generally, private homeowner and condominium associations do not fall under the ADA "public accommodations" definition.  (Don't confuse ADA issues with FHAA issues, where a handicapped owner can request a "reasonable accommodation" to make modifications at their own expense.)  So, if a community association pool is limited to owners and guests of owners, it's likely the new ADA pool requirements will not apply.  However, association actions can change this general rule.  If an associations rents out the pool to public events or non-members to defray association expenses (or is a condo in the nature of a timeshare where units are actively rented to outsiders), it's likely the pool will be subject to the ADA requirements.  

Where things get complicated is in the middle.  Let's say you have a pool just for members and guests, but the pool hosts six swim meets a year.  At those times, you don't know who's at the pool, but it includes guest swimmers, relatives of guest swimmers and others.  During swim meets, the pool sounds like a public facility where the ADA rules apply.  Unfortunately, lack of guidance with the new pool rules has led to different interpretations.  One interpretation is that a few swim meets a year aren't enough to change the nature of the pool to a public facility.  But where's the defining line that would trigger the ADA rules?  Four swim meets?  Twenty?  The alternate interpretation is that for the few swim meets each year, the pool meets the definition of a public facility and must comply with the ADA rules at the events.  Those taking this approach have advised clients that a portable lift that can be wheeled out when necessary is sufficient.  (FYI, due to reports of problems with some mobile lifts, some pool companies only offer anchored lifts.)  Earlier this year, though, the Department of Justice (DOJ) announced that lifts for public pool facilities must be permanent, not temporary.  As the pronouncement did not distinguish between pools that are public year-round versus associations that host four swim meets, the situation only became more confused.  The outcry and confusion over the lift "clarification" led the White House last week to issue a 60-day extension that pushes compliance for the pool lift requirement to May 15, 2012.  The statement also provided: "The department will also publish a Notice of Proposed Rulemaking with a 15-day comment period on a possible six-month extension in order to allow additional time to address misunderstandings regarding compliance with these ADA requirements."

Without question, the issue of whether temporary lifts can be utilized is unresolved.  With that said, there are a couple of approaches that may make sense with the new pool regulations:

1.      Depending on a smaller sized pool, your association may already be in compliance.

2.      For a larger pool, if your association only permits members and their guests, the new ADA rules will likely not apply.

3.      For a larger pool, if your association regularly rents out the pool to non-owners, you should assume the ADA rules will eventually apply.  So, you may wish to consider pool modifications or changing the policy that permits non-owner rentals.

4.      For a larger pool, if your association hosts swim meets, you should keep a close eye on how the pool regulations develop.  Unless you wish to go ahead and make permanent corrections, you may have more specifics once guidance on these issues is announced in a few weeks.

In case you're wondering what the consequences of all this are, the ADA can be enforced by fines through the DOJ following a complaint or by a lawsuit filed by a private citizen.   Complaints require that an answer be filed by the association, an investigation, cooperation, etc.  Attorneys' fees and costs for responding to ADA or Fair Housing Act issues are at times covered by some D&O policies, which may be worth confirming.

Jim

_______________________________________________________ 
JAMES H. SLAUGHTER
ROSSABI BLACK SLAUGHTER, PA 
ATTORNEYS AT LAW

      Greensboro Offices:

      P.O. Box 41027

      Greensboro, NC  27404

      336-378-1899
     Charlotte Offices:
      301 McCullough Drive, 4th Floor
      Charlotte, NC  28262
      704-970-1593

jslaughter at lawfirmrbs.com  
Firm Web Site: www.lawfirmrbs.com 
Parliamentary Web Site: www.jimslaughter.com

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