[Durham INC] Fw: New Pool Requirements - Update

Tue Nov 27 15:32:27 EST 2012

Hi Mike,

Thanks for forwarding.   Woodcroft is one of the "HOA" neighborhoods in the
INC.    But the Woodcroft Community Association does not own or operate our
"neighborhood" pool,
which is a private membership pool managed under the name of the Woodcroft
Swim and Tennis Club.     However, I will forward these notices to the WCST
to make sure they
are aware of the potential impact to them as a private pool owner/operator.

Scott Carter
Woodcroft INC delegate

From:	"M. W. Shiflett - Hotmail" <mwshiflett at hotmail.com>
To:	<inc-list at rtpnet.org>, <inc-list at DurhamINC.org>, "INC
            listserve" <list at durham-inc.org>,
Date:	11/27/2012 03:11 PM
Subject:	[Durham INC] Fw: New Pool Requirements - Update
Sent by:	inc-list-bounces at rtpnet.org

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
RBS Logo color

 Greensboro Offices:                     Charlotte Offices:                                            
 P.O. Box 41027                          301 McCullough Drive, 4th Floor                               
 Greensboro, NC  27404                   Charlotte, NC  28262                                          
 336-378-1899                            704-970-1593                                                  

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

----------
 This e-mail contains confidential information for the addressee.  Do not
    read, copy or share this communication unless you are the intended
addressee.  If you receive this e-mail in error, please contact the sender
                     by reply e-mail or by telephone.
 _______________________________________________
Durham INC Mailing List
list at durham-inc.org
http://www.durham-inc.org/list.html
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://rtpnet.org/pipermail/inc-list/attachments/20121127/633c347e/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: graycol.gif
Type: image/gif
Size: 105 bytes
Desc: not available
URL: <http://rtpnet.org/pipermail/inc-list/attachments/20121127/633c347e/attachment.gif>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: 3D967715.jpg
Type: image/jpeg
Size: 8419 bytes
Desc: not available
URL: <http://rtpnet.org/pipermail/inc-list/attachments/20121127/633c347e/attachment.jpg>