A Regulatory Tide Sinks Pools

Thousands of swimming pools throughout the USA will shut down, and many spas, clubs and resorts will have to close also. It seems odd for the government to be imposing greater costs on enterprise and destroying jobs when the economy is struggling to recover, but the timing will minimize political damage, as pool providers have until January 2013, just after the election of November 2012, to comply.

The ADA, the Americans with Disabilities Act, requires that services available to the public be provided to those with disabilities in a way that they are able to use the services on an equal basis with the general public. Now the federal government is interpreting the ADA and the Standards for Accessible Design to apply to the act of entering a body of water. The goal is to provide access to every open-to-the-public swimming pool to people with disabilities.

Some handicapped people (officially referred to as "disabled") are unable to use steps or ladders to get into a swimming pool or to step into a hot tub. To enable the handicapped to be able to use such pools, the federal government is now requiring swimming pools open to the public to have elevators or lifts to transport the handicapped. ADA-compliant pool lifts cost several thousand dollars. The fine for failure to comply is $100,000 fines, in addition to a lawsuit liability.

The ADA requires both Title II (governmental) and Title III (private-sector) enterprises to provide "accessible means of entry for swimming pools." The ADA pool regulations do not apply to apartment buildings unless there is some amount of public accommodation. Whether a private club is included depends on their rules and fees. Of course the existence of this regulations will make many homeowners' associations, apartment owners, and clubs avoid any public accommodation.

When a private-sector enterprise or club makes a financial decision, it does a cost-benefit analysis. Rationally, an activity is worth doing if the benefit is greater than the cost. But governments typically do not do cost-benefit. Those who seek greater welfare for the poor only talk about the benefit to the poor and to the handicapped. But if costs are ignored, and costs are greater than the benefits, then the regulation creates waste that has a general social cost.

Thousands of smaller hotels, spas, clubs, and towns will have to shut down their pools, because the cost of installing lifts is too high. Others will install them, but will have to reduce other services. Some clubs will have to shut down entirely. Organizations just barely able to survive will not be able to bear the extra cost. Many community pools will shut down to avoid a large expense for the benefit of very few users. A pool provider would have to tear up the deck to install a fixed elevator. The elevator would also make the provider much more vulnerable to lawsuits from people injured. Children will be jumping on and off the lifts, and they could be injured. The added liability would probably be a bigger concern than the cost of the lift.

If the people of the United States want to provide greater access and use of pools for handicapped persons, they should bear the cost, rather than impose the cost on the providers of pools. Regulations act as a tax, and it is unjust to impose a tax on a club that is barely able to survive already, for a benefit that only a few may use, or maybe none.

It would be humane and benevolent to enable the handicapped to be able to use swimming pools and hot pools. The question is whether providers should be forced to do this, and whether they should be forced to be vulnerable to lawsuits rather than have an "at your own risk" policy.

One of the problems for policy is the semantics and terminology. "Handicapped" implies that a person needs some help to be able to do some task. "Disabled" implies that a person has no ability at all. Most people with a physical impairment are able to do tasks, and just need some help. There once was a slogan, "hire the handicapped." Now they are "disabled" and are legally entitled to receive benefits and to sue those who don't provide them in quite the right way.

Dare I ask whether a handicapped person could just as well get into a pool with some human assistance? It seems to me that a handicapped person would be with a friend or family member who would be able to help that person get into and out of the water. But it seems our modern age requires robots to replace human aid.

This pool rule is another example of ever greater US federal governmental impositions and restrictions. By the 10th Amendment of the US Constitution, such powers belong to the states and to the people, but this amendment along with the Ninth Amendment have been put to death by the courts. Few Americans know about these two protections against federal intrusion, and few care.

Those who in January 2013 see signs saying "pool closed" or "pool open to members only" will blame the hotel or the city or the club, and not think about the greater moral or economic or constitutional issues.