Trial lawyers unwrap Obama gift on ADA tomorrow

Beware the Ides of March, a soothsayer warned Julius Caesar according to Plutarch (and later dramatized by William Shakespeare), and perhaps taxpayers need to heed that warning as well.  Tomorrow, a new rule from the Obama administration on the American with Disabilities Act goes into force — and trial lawyers will have a brand new knife to plunge into the backs of community recreational facililties and commercial swimming venues:

The DOJ has been issuing a growing wave of such guidelines over the years, reaching an ever larger portion of business activities. In September 2010, the DOJ issued guidelines for “recreational facilities,” including a new rule that all public access swimming pools must provide a lift capable of moving disabled patrons from their wheelchairs into the water.

Compliance with the rule requires pool owners to have a lift for each “water element” in their facility. So if your local community pool also has a spa, both the spa and the pool must be “accessible.” But if you have two spas, don’t worry, only one lift is required.

In fact, most people in the swimming pool industry thought that one portable lift would be enough. Pool owners claim they were led to believe that, as long as they had one device that could be wheeled out whenever someone needed help getting into or out of a pool or spa, there would be no need intrusive permanent fixtures.

But then industry leaders began hearing rumors last year that Obama’s DOJ would require permanently fixed lifts for each pool and spa. They began to write letters to DOJ asking for clarification on the issue.

On Jan. 31 of this year, DOJ granted the industry’s call for a clarification: But it was not the answer they wanted. All 300,000 public pools in the United States must install a permanent fixed lift. The deadline for compliance is tomorrow, March 15. Call it “Poolmageddon.”

There is no way all 300,000 pools can install permanent lifts by Thursday. There simply are not enough lifts in existence or enough people who know how to install them, according to industry spokesmen. Plus, each lift costs between $3,000 and $10,000 and installation can add $5,000 to $10,000 to the total.

The Obama administration insists that they won’t enforce the rule … for now, anyway.  They don’t have to enforce it themselves, though.  The ADA allows for individuals to sue non-compliant “public access” facilities for violations of any of the ADA rules in effect.  That means there are potentially multiple lawsuits coming for each of the 300,000 or so suddenly non-compliant swimming facilities in the US.  After all, how many lawyers does this country have, and how many people looking for a quick buck from settlements based on the threat of litigation?  I suspect the answer could be in the millions.

Just in case you wondered, trial lawyers raised $45 million for Obama in the 2008 election.  They obviously need the money.

What will be the outcome from this rule change?  You may need to find a private pool in order to go swimming this summer.  The only protection that many of these pools will have will be to close them down until they can find the money to add expensive permanent lifts, and in spas that may mean a permanent closure, depending on their size.  By denying approval for portable lifts — which would provide access to anyone who wanted it at a reasonable cost — the Obama administration has made clear that their priority isn’t access.  It’s synchronized swimming with their trial-lawyer allies, and now access may be much more widely denied as a result.

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