Community Associations Update - March 2012

Date: March 19, 2012

Swim Meets and the Department of Justice
By: Andrew J. Terrell, Esq.

Issue: If your association hosts a swim meet, does the pool have to be ADA-compliant?
Takeaway: Probably.

As we approach the summer months, many questions have been raised regarding whether conducting swim meets, in which teams whose members are not residents of a community association, and whether an obligation that the swimming pool where the swim meets occur, be compliant with the American with Disabilities Act's ("ADA") accessibility requirements. Many associations, as a public service, provide their facilities to swim teams for such meets.

In September, 2011, the U.S. Department of Justice ("DOJ") adopted revised, final regulations implementing the provisions of the ADA including provisions of the ADA applicable to "places of accommodation." The regulations came into effect on March 15, 2012. The regulations clarify and in many ways improvise the DOJ's interpretation of the ADA and therefore how the DOJ will apply and seek to enforce the ADA. The question as to whether the DOJ regulations are applicable to the swimming pool of a private community association rests on whether or not the swimming pool is a "place of public accommodation."

Generally, a place of public accommodation is one to which the public is invited or which is open to the public. Prior to adoption of the DOJ regulations, community association swimming pools that limited access to members of the community and guests of members of the community were not deemed places of public accommodation. If, however, the swimming pool was open to non-residents, who were not guests of residents, the pool would be deemed a place of public accommodation and therefore subject to the ADA. For example, pools of community associations that granted memberships to residents of adjacent communities are considered, places of public accommodation.

The new regulations expand this understanding in a significant way. Under the new regulations, the ADA is applicable to the sites of events open to the public, including swim club events and swim meets. Because of the revisions to the DOJ's application of the ADA, if a private community association opens the swimming pool to swim club events or swim meets for non-residents, the swimming pool may be deemed a place of public accommodation.

The impact of this conclusion is difficult to state precisely for any particular community association. The ADA standards for accessible design require swimming pools that are places of a public accommodation to remove physical barriers to access -- but only to the extent that removing the barriers is "readily achievable."

What does "readily achievable" mean for you and your particular building, pool and grounds? It's hard to say. The "readily achievable" standard has not yet been flushed out, and the regulations indicate that this is to be determined on a case-by-case basis.

In short, as the pool season approaches, community associations that may be involved with swim teams, swim meets and the like should contact their Whiteford, Taylor & Preston attorney to ensure that they are in full compliance with the brand new regulations.