ADA regulations require that public swimming pools have a second means of access, such a lift or ramp, for the handicapped. This requirement does not apply to homeowners association swimming pools unless the association has opened its pool to the public.
Renting to the Public. If an association rents its pool facilities to the public, such as for weddings, parties, etc., it will need handicap access at least for the duration of the event. That can be accomplished with a portable chair lift. If guests are not using the pool, other facilities such as bathrooms may need to be modified for handicap access under other provisions of Title III.
Renting to Members. If an association rents its facilities to members only, ADA requirements do not apply.
Swim Meets. Because association residents are allowed to invite guests without triggering "public accommodation" ADA rules, does that apply to "guest" swim teams? Some argue that a swimming competition event in the association's pool is private because only invited guests can attend the event. The general public is not invited. A counter-argument can be made that swim meets are "public" events because those attending the event (swimmers, coaches, family members and other spectators) are not all known to members of the association--many or most of them are strangers. The public event argument is much stronger if attendees are charged a fee. (Carolyn v. Orange Park.) A case that addresses the issue of public versus non-public facilities is Jankey v. Twentieth Century Fox.
HOA Unit Rentals. If the association is behaving like a hotel,” i.e., renting out units when owners are absent, it would likely be required to comply with ADA regulations.
Request for Accommodation. When making a decision about a handicap chair lift, boards should take into account laws that encourage accommodation of the handicapped. Following are some of those laws:
1. Americans With Disabilities Act. In 2010 ADA Standards were changed to require all commercial facilities, such as hotels, motels and health clubs, provide accommodations for disabled pool patrons.
2. Federal Fair Housing Act of 1988. Associations cannot prevent residents from using their own pool lifts to get into and out of HOA pools. However, associations can require owners to store any portable equipment when it's not in use. If the person wants to install a permanent lift or a ramp, they may have that right depending on the circumstances.
3. Fair Employment and Housing Act (Calif. Gov. Code §§12900-12996) requires reasonable modification of an association's rules and policies to allow a disabled person equal opportunity to use and enjoy the premises.
4. Davis-Stirling Act (Civ. Code §4760) allows owners to make alterations to the common areas at their own expense to accommodate their disabilities.
Recommendation: If a request for accommodation is raised by a handicapped resident, boards should seek legal counsel and consider ways to reasonably accommodate the request. The same is true for swim meets. Even if handicap issues have not yet been raised, boards should budget for and make facilities ADA compliant whenever possible. Handicap advocates and their lawyers tend to be aggressive, and fighting over such issues can be expensive. It may be less expensive to make amenities handicap accessible than to spend money on lawyers.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.