Client Alert: Department of Justice Enacts New Americans with Disabilities Standards That Could Affect Community Associations

Date: July 14, 2011

Members of community associations must be aware that the U.S. Department of Justice ("DOJ") has recently issued standards for how it interprets the ADA provisions.  Under those standards, if a community association's swimming pool is open to other than members of the association and their guests; it will be deemed a place of public accommodation.  If it is a place of public accommodation, then the ADA requires that there be at least one means of ingress and egress to the pool for persons with disabilities if the perimeter of the pool is 300 linear feet or less and a second means if the pool perimeter is more than 300 linear feet.

Under these new DOJ standards, if the community association pool is used for swim meets with outside teams or is rented to non-residents, offers memberships or rights of use to non-resident of the community or otherwise invites or permits the public to use the swimming pool, the pool will be deemed a place of public accommodation.  The DOJ standard clarifies this issue and can affect community associations that conduct swim meet at their pools.

Boards should also recognize that their pools are subject to the federal fair housing laws.  Thus, community associations must respond to requests for reasonable accommodations made by or on behalf of persons with disabilities and may not discriminate on the basis of familial status.  This means that if an occupant with disabilities asks to modify the swimming pool or its access to accommodate that person, the association is required to allow the occupant to make reasonable modifications to the common elements at the occupant's expense.  Similarly, if a resident's guests are minors an association cannot apply different rules to the minors than it does to others.  So, for example, "adult only" periods for use of the swimming pool are not permissible.  Different rules may be applied to some residents or guests than others only for reasons of safety or health.  The safety and health exception is narrowly construed.  As an example of how narrowly the safety and health exception is applied, it is not possible to deny an incontinent resident or guest use of the pool because waterproof garments can serve to prevent contamination of the pool water. 

Please contact your Whiteford, Taylor & Preston counsel if you have any questions relating to these new standards.