Advocacy Update

Written by Forrest Wall, CAE, Staff Vice President and Industry Relations

Clarifying ADA Accessible Pool Regulation
There has been much confusion recently in the apartment industry relative to the application of revised Americans with Disabilities Act (ADA) pool accessibility regulations. On September 15, 2010, the Department of Justice published revised final regulations implementing the ADA for Title II (State and local government services) and Title III (public accommodations and commercial facilities). These requirements clarify and refine issues that have arisen over the past 20 years and contain new requirements, such as the accessibility standards for new and existing pools. Under Title III of the ADA, the law requires that “places of public accommodation” such as hotels, resorts, swim clubs, and sites of events open to the public, remove physical barriers in existing pools to the extent that it is readily achievable to do so (with a compliance deadline of March 15, 2012).

A public accommodation is defined in 29 C.F.R. § 36.104 and means a facility operated by a private entity whose operations affect commerce and fall within at least one of 12 categories that includes those mentioned above and others such as restaurants, movie theaters, retail or grocery stores, etc.

Multifamily rental properties generally are not required to meet the accessibility provisions of the ADA under Title III. Rather, the Fair Housing Act applies to “covered multifamily dwellings” comprising 4 or more units.

An example of an exception to this would be the leasing offices, which are considered “public accommodations” under Title III because they are open to people other than residents and guests. Therefore, that space must comply with the ADA requirements as well as applicable Fair Housing Act requirements. If an apartment property pool is not open to anyone but residents and guests, then it would not be covered under Title III of the ADA and thus not be subject to the new regulations. Keep in mind, however, that while your existing pool may not need to be retrofitted to the new ADA requirements, if a tenant requests a reasonable accommodation to access the pool, the landlord could be required to provide that. As always, consultation with your attorney is advised as you consider these issues.

Legislation Introduced to Limit Medical Marihuana on Private Property
Senate Bill 974, introduced in the Michigan Legislature in February, proposes to amend the Michigan Medical Marihuana Act to prohibit the possession and use of medical marihuana on private property in violation of a prohibition established by the property owner. The bill also would prohibit smoking medical marihuana in any portion of private property that was open to the public. AAM is supporting this legislation, as it would clearly codify a landlord’s right to prohibit medical marihuana. You may recall that Michigan Attorney General Schuette released an opinion last year supporting property owner rights in these situations.

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