Condo Media - March 2012 - 40

LEGAL

by Pamela M. Jonah, Esq.

Pool Rules
Meeting ADA Requirements
s the winter months wind down and we look forward to opening our pools for the spring and summer, condominium and homeowner associations (HOAs) should be advised that the date of compliance, with regard to the regulations amending the Americans with Disabilities Act (ADA) containing new requirements for some facilities that maintain swimming pools, is March 15, 2012. Still, many condominium associations and HOAs are confused about whether these regulations apply to their communities. The answer to this starts with an understanding of what the ADA’s purpose is and what entities it covers. The ADA is a civil rights law that prohibits discrimination on the basis of disability. Entities that are affected by the ADA regulations generally fall under either Title II or Title III of the Act. Title III is the one that may apply to condominiums and HOAs, as it regulates places of public accommodations. But wait a minute, one might ask: “If our condominium association is a private residential community, how can we possibly have to be concerned with these new ADA regulations?” Well, the answer is not that simple. In general, the ADA does not affect residential dwellings, such as a condominium or an HOA. However, if any of these facilities operates an element of public accommodation within their premises, these elements are then subject to ADA regulations. affect commerce and fall within at least one of 12 categories. There are only a few that may bring a condominium association or HOA under the Act. They are: 1. Places of public gathering; 2. Places of recreation; and 3. Places of exercise or recreation. Therefore, a condominium or HOA that maintains a clubhouse, exercise room or pool may fall under the ADA regulations with respect to these facilities. But just because a condominium contains a clubhouse, exercise room or pool does not automatically bring the association under the mandate of the ADA regulations. Since the topic of this article is focused on pools, I will leave the subject of clubhouses and exercise rooms for another day. Here are some examples of situations where a residential entity, such as a condominium or HOA, would fall under the ADA regulations with respect to swimming pools. Example 1: A condominium’s pool is used for swimming competitions that are open to competitors outside the association. This situation would be considered offering a public accommodation. Example 2: A condominium actively rents out its units when owners are absent (timeshare situations), including advertising, taking reservations over the phone and providing either meals or housekeeping services. In this instance, the condominium would be considered a hotel and would have to comply with ADA regulations. There are times when it will not be as clear. For example, what if the association rents out the pool to its unit owners for pool parties? If the unit owner then invites several guests to the pool party, does the fact that there has been an element of commerce, combined with a greater number of guests, require the association to be ADA compliant? While not clear, it appears that as long as the party is limited to unit owners and guests accompanied by that unit owner, ADA regulations may not apply. If the condominium or HOA strictly limits use of the pool and its facilities to owners, residents and their guests, they would not be subject to ADA regulations, including the recently revised regulations containing rules with regard to pools. In order to be assured of not having to comply with ADA regulations, it is suggested that guest access to the pool be limited to situations where guests are accompanied by owners and/or residents of the association, rather than allowing guests to come and go at will. Associations may accomplish these restrictions by amending their governing documents and enacting specific rules with regard to access to the pool.

A

Federal Fair Housing Act And State Requirements
However, even when an association restricts the use of its pool to owners, residents and their guests so that they are then not subject to ADA requirements, associations still must comply with the Federal Fair Housing Act and any individual state requirements whether by state statute or code. For example, the Federal Fair Housing Act prohibits discrimination in housing on the basis of race, color, reli-

Elements of Public Accommodation
What is a public accommodation? The ADA defines a place of public accommodation as a facility whose operations

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CONDO MEDIA • MARCH 2012
Condo Media - March 2012

Table of Contents for the Digital Edition of Condo Media - March 2012
