Despite the Department of Justice’s May 24 clarification and the looming Jan. 31 deadline for the installation of fixed pool lifts to existing pools, the hotel industry remains largely quiet on the issue. Two of the largest lift manufacturers say orders came to a halt early this year, and they’re only now starting to pick up again. And most hotel owners, management companies and franchisors declined comment on this suddenly hot-button issue, citing either a lack of knowledge or fear of becoming a target. The dispute came to a head in July when a coalition of disability rights organizations launched a national boycott and awareness campaign against the hotels and chains represented on the boards of the American Hotel & Lodging Association and the Asian American Hotel Owners Association, the industry’s leading lobbying groups. The AH&LA says it is working to educate its members on the law and how to comply, but it also hopes to keep educating Congress and the DOJ on its position that portable lifts would be a better solution. It’s the latter part that has disability rights advocates up in arms. They see the continued resistance and legislative efforts to change the law or to limit the DOJ’s abilities to enforce the law as an effort to roll back the 1990 Americans With Disabilities Act.

1. Understanding the Pool Lift Issue
Sep 5, 2012 12:23 AM, By Eric Stoessel
Fixed Position: DOJ has clarified pool lift requirements, but hoteliers still unsure how to proceed
(http://www.addthis.com/bookmark.php)
Led by the American Association of People with Disabilities, ADAPT, the
National Council on Independent Living, and the National Disability Rights
Network, disability activists protested outside the AH&LA's headquarters in
Washington D.C. on Thursday, June 14.
Despite the Department of Justice’s May 24 clarification and the looming Jan. 31 deadline for the
installation of fixed pool lifts to existing pools, the hotel industry remains largely quiet on the
issue. Two of the largest lift manufacturers say orders came to a halt early this year, and they’re
only now starting to pick up again. And most hotel owners, management companies and
franchisors declined comment on this suddenly hot-button issue, citing either a lack of
knowledge or fear of becoming a target.
The dispute came to a head in July when a coalition of disability rights organizations launched a
national boycott and awareness campaign against the hotels and chains represented on the boards
of the American Hotel & Lodging Association and the Asian American Hotel Owners
Association, the industry’s leading lobbying groups. The AH&LA says it is working to educate
its members on the law and how to comply, but it also hopes to keep educating Congress and the
DOJ on its position that portable lifts would be a better solution.
It’s the latter part that has disability rights advocates up in arms. They see the continued
resistance and legislative efforts to change the law or to limit the DOJ’s abilities to enforce the
law as an effort to roll back the 1990 Americans With Disabilities Act.

2. “This is way beyond lifts and access to pools,” says Bruce Darling, an organizer with ADAPT, a
network of grassroots activists involved with the boycott, and also the CEO of the Center for
Disability Rights. “The concern is the efforts by the hotel associations are to undercut the ADA,
which would have ramifications that could open up the entire civil rights legislation.”
The problem began when the DOJ published the “2010 Standards for Accessible Design,” which
for the first time contained specific accessibility requirements for pools and spas. The means of
acceptable entry were left ambiguous, and many in the hotel and pool industries interpreted the
ADA update to allow the use of portable pool lifts, but that changed on Jan. 31 of this year. Two
months prior to the original March 15 compliance date, the DOJ published revisions mandating
fixed lifts, meaning portable ones that could be rolled out on demand and shared from
neighboring pools and hot tubs were no longer acceptable.
The lodging industry, led by the AH&LA and AAHOA, quickly responded and its lobbying
efforts, combined with a lack of supply of the suddenly in-demand permanent pool lifts, led to an
initial two-month delay and then the further clarifications in May and extension to Jan. 31. But
now that the DOJ has made its position clear, the vast majority of hotel pools are still lacking the
required fixed lifts.
“We want our members to know what the law says right now and it says you need to have some
sort of fixed lift,” says Kevin Maher, SVP Government Affairs, AH&LA. “They should know
that, take a look and make the determination if it is readily achievable to secure it and then
purchase it and get one in place.”
But, Maher says, “we still think portable lifts would meet everyone’s requirements, to the people
who need access and to hotels who do need to limit the risk.” The AH&LA believes fixed pool
lifts will become an “attractive nuisance” and a danger to children at pools mostly unattended by
lifeguards, much like diving boards that were removed en mass by hotels two decades ago
because of those same liability concerns.
“We’re not trying to weaken ADA,” Maher stresses. “We just want flexibility.”
Understanding The Law
The 2010 Standards require existing pools at hotels to provide accessible entry and exit when
readily achievable, through fixed pool lifts, sloped entries, transfer systems or accessible pool
stairs. Larger pools (300 linear feet or more) require two forms of entry, and smaller pools and
all hot tubs or spa features require their own lift. All newly constructed and altered pools need to
be built with these features. The original 2010 Standards include specific requirements for the
location, size of the seat, lifting capacity and clear floor space needed.

3. The 90-degree Aqua Creek Ranger could work at
90% of all hotel pools, estimates Richard Reyer, vice
president of sales for Lodging Pool Lift Supply, a
distributor of Aqua Creek products.
On May 24, the DOJ published a comprehensive nine-page package titled, “Questions and
Answers: Accessibility Requirements for Existing Swimming Pools at Hotels and Other Public
Accommodations.” It states one of the DOJ’s “key goals is to emphasize the flexibility of the
standards for existing swimming pools,” and outlines three key points:
1) The deadline for compliance was extended to Jan. 31, 2013.
2) Under ADA, “there is no need to provide access to existing pools if doing so is not ‘readily
achievable.’ Providing access is not readily achievable if it would involve significant difficulty or
expense.”
3) The DOJ “will not pursue enforcement of the fixed-lift requirements against those who have
purchased otherwise-compliant portable lifts before March 15 as long as they are kept in position
for use at the pool and operational during all times the pool is open to guests.”
The update changed the argument from permanent and portable to whether the lift is fixed,
meaning if it is “attached to the pool deck or apron in some way,” the DOJ explains. Owners
who bought portable lifts prior to March can comply with kits most manufacturers have now
created to overcome the challenge, or if not readily achievable, the portable ones can suffice.
Lifts are only required if “readily achievable.” If they’re not, hoteliers won’t have to close their
pools, states the DOJ in the May Q&A: “If accessibility is not readily achievable, the Department
recommends that businesses develop a plan to provide access into the pool when it becomes
readily achievable in the future. Because accessibility in existing facilities is an ongoing
obligation…”
The ongoing obligation also means owners must make sure the lifts are properly maintained and
in working order.
‘Readily Achievable’
Those two words and the concept of “readily achievable barrier removal” are key components, if
not the crux, of the 1990 civil rights legislation and the current pool-lift issue.

4. “Sufficient direction with discretion is a hard thing to do,” says Stephen Barth of the readily
achievable tight rope. The founder of hospitalitylawyer.com and professor of hospitality law at
the Hilton College of Hotel and Restaurant Management at the University of Houston believes
the ADA is a “pretty business friendly” law that “enables you to make a subjective assessment of
whether you as a business can afford to do this, whether the capital expenditure is an undue
burden financially.”
Proving a fixed pool lift would be a “significant difficulty or expense” is the challenge. The
intentionally gray area left open to interpretation could ultimately be judged by a court of law or
the DOJ if a lawsuit or complaint is filed.
“This gray area is cause for a good 80% of the litigation,” says David Raizman, who specializes
in disability access and employment law for Drinker Biddle & Reath LLP and often represents
hotel owners. “The grayness of the standard allows plaintiffs to bring lawsuits, and now
(hoteliers) will have to pay to litigate the question under a gray standard.”
Imagine a hotel owner, perhaps one overleveraged struggling to stay afloat after the historic
declines in values and performance since 2007, who can’t afford to make the capital
improvements mandated by their franchisor to keep the flag. If the owner documents their
inability to purchase and install the required lifts and makes specific plans to do so when
revenues return and within a stated period of time, they should be clear of penalty, according to
the May 24 document:
“In that case, installation is not required. If it is not readily achievable for a business to provide a
fixed lift — that is, if it would be too difficult or expensive to make these changes — then a
business may use other ways, such as a non-fixed lift, to provide access to the pool. If it is not
readily achievable to provide access to the existing pool, even by way of a non-fixed lift, the
business need not do so. Nonetheless, it should make a plan to achieve compliance with the pool
access requirements when doing so becomes readily achievable.”
Both Barth and Raizman believe if legitimate reasons are properly documented, this hypothetical
hotel owner would be OK. The obligation is ongoing, though, so the owner would need to have
specific plans for when and how they’d become compliant in the future.
The problem for the AH&LA and the industry is “readily achievable” is undefined and often left
up to individual judges, Maher says. Nothing is stopping someone from filing a complaint or a
lawsuit in that example, so even if an owner can prove installing a lift is not readily achievable,
he or she may still have to spend the money to litigate the issue.
Tax credits and deductions for barrier removal are available to business owners, which should be
factored in to those arguing the cost is an undue burden and lifts aren’t readily achievable. Small
businesses with 30 or fewer employees can use the Disabled Access Credit for up to a $5,000
credit, half the total eligible expenses. Businesses of all sizes can take advantage of a deduction
up to $15,000 per year for removing barriers. Buying and installing pool lifts qualify for both.
The Lifts
“There’s a lot of misinformation out there” about the price of lifts, says Richard Reyer, vice
president of sales for Lodging Pool Lift Supply. “The one huge misconception out there is people
believe these are double the price of what they are.”
He says the Aqua Creek line of fixed lifts he sells range in price from approximately $3,000 for
the 90-degree Ranger to $3,500 for the 360-degree Scout. Installation typically costs another

5. $1,000. Aqua Creek also makes an ADA compliant portable pool lift — the Patriot — which
Reyer says retails for approximately $5,000 with the newly developed fixing kit.
Bruce Giffin, national sales manager for Aqua Creek, says the lifts are easy and safe to use, and
the disabled community will have no trouble operating the equipment. Reyer says his delivery
and installation includes training for hotel staff on how to use and properly maintain the lifts.
The prices of the lifts themselves aren’t all that onerous, but installation can be. Reyer says those
instances are few and far between. “The Ranger — which a good maintenance man might be able
to install or we could deliver and install for probably less than $4,000 — probably works in 90%
of all pools and spas out there.” Add in the Scout, he says, and 98% of all properties would have
reasonable options.
Margaret McGrath, vice president of marketing for SR Smith, says the manufacturer of pool-
deck equipment has a full line of ADA compliant lifts available from a network of distributors
ranging in price from $3,000 up to $7,500 for the portable (that can be fixed) lift. She cautions
the installation of permanent lifts could require professional help, and potentially up to $5,000
more. It can involve complexities with electric code, bonding the equipment into the concrete
deck and even require local permitting.
ADA compliant lifts from SR Smith range in price
from $3,000 to $7,500.
The portable lifts are slightly more expensive initially, but don’t come with the installation costs
and complexities. They don’t have weight bearing anchors, Reyer explains, and can quickly be
attached and removed. They weigh close to 1,000 pounds, but are on wheels and an average
person could roll them in and out, Reyer says.
After selling 400 to 500 lifts in January and February, Reyer says his phone stopped ringing in
March after the first extension by the DOJ and only started ringing again in July. “It’s growing
each week,” he says of his sales. “They were at literally zero. The last thing anyone wanted to
think about during the summer months was lifts. I believe owners are focusing on this again.”
Right now, McGrath and Giffin say order to delivery takes from days to weeks. If everyone
orders on Jan. 30, though, lifts could take months to ship. The DOJ’s May guidance states if a
compliant lift is ordered and on back order, a hotel owner doesn’t have to close the pool and
should install the lift when it becomes available.

6. The Debate
Portable lifts are now in fact acceptable, but not in the way the AH&LA would like. Lifts must
be affixed to the pool at all times the pool or spa is open, and can’t be moved to other locations
as needed. They can be wheeled out and affixed during pool and spa hours and removed during
off hours, though.
“The federal government did a study on response time with portable lifts — and this is from
disabled travelers — and the average response time was six minutes for portable lifts to be put in
place,” Maher says. “So we think that’s reasonable, and in addition, we suggested, the
requirement is upon us and we can back that up. A hotel clerk could ask every guest when they
check in if they’ll need a pool lift, and at that point the lift could be put in place. We could make
that a requirement, so we’re not singling anyone out, so there’s no embarrassment factor.”
The AH&LA also contends permanent lifts, positioned in the shallow ends of pools, will create
safety hazards. Without lifeguards, no one will keep children from playing on the lifts and using
them inappropriately. It’s the same reason hotels removed diving boards years ago, Maher says.
“Just putting up signs doesn’t stop lawsuits,” he says. “Our position is if you have a portable lift,
you can minimize that risk and provide access.”
Kelly Buckland, executive director of the National Council on Independent Living and one of the
groups involved in the boycott, scoffs at that notion. “It’s an excuse and not a valid argument,”
he says “I’m a father and wouldn’t leave a child unattended at a pool for any reason. The very
nature of a pool is dangerous to children.”
Larry Carraro, senior risk engineering consultant and hospitality industry practice leader for
Zurich Services Corporation, believes fixed pool lifts are similar to diving boards in that “the two
types of people who will use them are children and intoxicated adults.” A.V. Riswadkar, liability
line of business director for Zurich, says it will take time to see how safe these are, but “the risk
is there.”
“There’s always some exposure to hotels, but the more you have to show you took reasonably
safe steps to have a safe environment, from pool-use guidelines, adequate depth markings, no
diving signs, no unrestricted access, that all adds up and plays favorably in the defense of a suit,”
Carraro says.
SR Smith’s McGrath says she understands the concerns, but hasn’t seen any data showing the
lifts are being used inappropriately and causing injuries. Giffin says since 2002 when Aqua Creek
began making lifts, he’s heard of one injury, and it was caused by someone using the lift
inappropriately. Locking lift covers are available and the batteries can be removed, he says, to
prevent after-hours shenanigans.
The DOJ states in the Q&A that businesses can “consider legitimate safety requirements in
determining whether an action is readily achievable.” However, “legitimate safety requirements”
can’t be based on speculation or unsubstantiated generalizations, it adds. Jennifer Hatfield,
government relations director for the Association of Pool and Spa Professionals, says her
organization has no data to prove or disprove the hotel industry’s concern.
“People are falling in love with that attractive nuisance argument,” says Raizman. “Anyone with
experience in litigation recognizes the frailty of that defense” because of the lack of evidence.

7. The industry’s other argument is just as challenging. “Putting these lifts in to never be used —
that’s the issue,” says Raizman. “There’s not a real proportionality in cost to put these in and the
amount of use they get, but the job of the ADA is to make public accommodations accessible.”
Disability rights advocates have
launched a boycott and awareness
campaign because of the hotel
industry’s continued efforts to fight the
fixed pool-lift requirement.
On top of that, he adds, it’s not a very good argument for the industry to make publically because
it’s not very hospitable sounding.
The DOJ hopes for voluntary compliance, but $55,000 fines can be levied for first-time offenses.
Hotel owners will also be open to lawsuits come Feb. 1, from legitimately upset guests and
disability rights advocates, or of the “drive-by” variety that cropped up years ago, when
unscrupulous lawyers, plaintiffs and investigators looking to make a quick buck would send
threatening letters or file lawsuits to take advantage of the ADA requirements.
It’s hard to know what hoteliers are thinking now. Only one executive from 10 hotel ownership
or management groups queried responded to requests for an interview for this story.
Bob Habeeb, president and COO of First Hospitality Group, says most of the 50 hotels his
company owns or operates had portable pool lifts before the 2010 Standards were published, and
those that didn’t, now do. The permanently fixed mandate “caught us by surprise,” he says,
adding his concern is that fixed lifts could be safety hazards. “Most hotel pools are without
lifeguards, so there’s huge exposure there.”
Still, he adds, “When the smoke clears, we’ll be in compliance with the law of the land.”
Marriott was the lone brand company of six surveyed to respond, and only with a brief statement,

8. that in part, read:
“We are working diligently to install self-operable lifts in our pools and spas by the Jan. 31
deadline as required by the new rules and have encouraged our franchisees to do the same.”
There are still active bills in Congress to change the requirement or limit its enforcement, but the
AH&LA believes those are unlikely to pass, says Maher, and instead is focused on reaching out
to disability representatives to make its case for portable lifts. Those representatives believe the
DOJ has made its final ruling, and don’t seem interested in listening.
What Hotel Owners Should Do Now
The simplest solution for any hotel owner is to install fixed lifts at all pool and spa features by
Jan. 31, but that might be easier said than done. Experts first recommend assessing the property
and pool features to see what is required. Most manufacturers and distributors offer forms and
resources online to help analyze a hotel’s needs, and consultants specializing in ADA are also
available for a price.
“Start putting a plan together now,” says Brian Regal, founder of Confera OS
(http://www.conferaos.com/) , a hospitality-focused construction project management firm. “Put
your own timeline on it, of when you’ll buy and install the lift and any other upgrades you plan,
and allocate X amount of dollars every six months. Start making the upgrades now and spending
a little money to put your program to work.”
Attorney David Raizman recommends to his clients a three-to-five year plan and then the key is
sticking to it: “Two years from now, if someone sues you because you don’t have a lift, you can
show you’ve done everything else and it was on the list, scheduled for January 2015, and I think
that would provide an excellent defense.”
If owners are going to contend the cost makes lifts not readily achievable, they better be able to
legitimately prove it. “Create a paper trail of your thought process,” suggests attorney Stephen
Barth, including flow charts, your capital expenditure budget and all the bids you got for the lifts
and their installation.
Marian Vessels, director of the Mid-Atlantic ADA Center, says the DOJ could say “show me
your books” if an owner claims the costs are an undue burden. And she says it will ask if the
available tax credits and deductions were considered.
“I get the sense many lodging owners are unaware of that,” she says. Her center is one of 10
regional ADA centers funded by a grant under the U.S. Department of Education that provides
free or low-cost training, information and technical assistance on the ADA to businesses,
consumers, schools, and local and state governments.
For those owners installing fixed lifts, Richard Reyer of Lodging Pool Lift Supply, says to make
sure the lifts are ADA compliant and then make sure the installation is done properly.
Online Resources
• DOJ May 24 Q&A: www.ada.gov/qa_existingpools_titleIII.htm
(http://www.ada.gov/qa_existingpools_titleIII.htm)

9. • American Hotel & Lodging Association: www.ahla.com/ (http://www.ahla.com/)
• Association of Pool and Spa Professionals: www.apsp.org/ (http://www.apsp.org/)
• ADA Hospitality: http://adahospitality.org/ (http://adahospitality.org/)
• Tax credit and deductions: http://www.ada.gov/archive/taxpack.htm
(http://www.ada.gov/archive/taxpack.htm)
• Quick tips on tax incentives: www.adainfo.org/sites/adainfo.org/files/ADA-Quick-Tips-Tax-
Incentives.pdf (http://www.adainfo.org/sites/adainfo.org/files/ADA-Quick-Tips-Tax-
Incentives.pdf)
ADA National Network: http://adata.org/ (http://adata.org/)
Acceptable Use Policy (http://www.penton.com/Pages/AcceptableUsePolicy.aspx)
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