By Jim Butler, Hotel Lawyer | Author of www.HotelLawBlog.com
March 5, 2009
The Americans with Disabilities Act, or ADA, is an important federal
law applicable to all hotels in the United States because they are places
of "public accommodation." And just as the federal Civil Rights Act became
a powerful instrument to prevent discrimination by hotels, the ADA is now
assuming commanding importance in eliminating "barriers" to the use and
enjoyment of hotels, restaurants and other facilities governed by the act.
In tough economic times, we all want to slash "unnecessary" expenses,
but the costs of a proactive ADA compliance program deserve a more "critical"
rating than many have given it up to now. And as the saying goes, you can
pay a dollar for prevention today or many times that amount tomorrow in
defending litigation and meeting a higher standard after your operation
has been put under a plaintiff's microscope. The Department of Justice's
recent ADA sweeps in New York City, and the rising tide
of private ADA lawsuits filed against hotel owners are compelling proof.
We predict more DOJ sweeps and enforcement action in U.S. cities in
2009 and 2010, and significantly increased enforcement efforts by private
"true believer" zealots and blackmail artists as well.
How can anyone suggest spending money on ADA today unless you "have"
Notwithstanding survival-style budget slashing everywhere, we suggest
that a proactive ADA prevention approach is a critically necessary expense.
What if a doctor reviewed your health scan tests and said: "You have a
very high risk of heart attack in the near future unless you do something
immediately." And what if medical science had advanced to the point that
by paying $1,000 for a simple procedure or pill, you would have a 80-90%
chance of avoiding the heart attack altogether. You might not want to spend
$1,000 now, but most people would rather do that than suffer the risk of
the heart attack and expense of the problem later.
In other words: "You can't afford not to do it!"
ADA compliance is very much the same.
Cost effective steps that can bring you into "good enough" compliance?
The 80-20 rule.
With the practical experience gained over the past decade in handling
more than 300 ADA cases, we have real time experience in the field, seeing
what conditions and issues create the most trouble for hotels, restaurants
and other facilities. We have seen how the same red flags are sure to catch
attention. We have a broad experience and litigation-tested sense of as
to what cost effective steps can bring you into "good enough" compliance
to get you through most situations.
By having experts inspect your facility BEFORE the private litigants
or government become 'interested" in your property, we find that a corollary
of the 80-20 rule applies. This means that for something like 80% of the
problems (the high-profile, red-flag items that usually catch attention)
can be mitigated for something like 20% of the cost that would otherwise
be involved once your property is under the scrutiny of a private plaintiff
or the government in a litigation track.
Can you afford NOT to pay pennies today to save big dollars tomorrow?
A quick review on how ADA enforcement has taken on new prominence.
Considering that the Department of Justice started major ADA compliance
sweeps under the conservative Bush Administration, we foresee activity
stepping up to an entirely new level under President Obama. We think that
this will be a sea change, not unlike the Kennedy and Johnson administrations
stepping up civil rights enforcements.
You also need to remember that the ADA provides for enforcement by private
litigants, and they have become extremely active on everything from "drive
by" checks on parking lots and other exterior barriers, to web "surf bys",
swimming pool and a seemingly endless array of issues. As noted earlier,
the plaintiffs or their counsel are often disabled persons who are on a
mission to make the world equally accessible to all disabled people, whatever
the cost or practicality.
of Justice "ADA Sweeps"
in NYC's Times Square theater
I recently caught up with my partner, Marty Orlick, who has defended
clients in more than 300 Americans with Disabilities Act (ADA) lawsuits,
many of them involving hotels, restaurants and hospitality facilities.
Jim Butler: Marty, you are always traveling
on behalf of our national hotel clientele, doing ADA audits and other work
-- but why so much time in spent in New York City the past few years?
Marty Orlick: I have been defending clients in a number of
the Department of Justice's (DOJ's) ADA investigations. A number of our
clients have properties in New York, and one of them was included in the
DOJ's "Manhattan Hotels/Time Square Theater District ADA Compliance Review
Survey", a sweep of hotels around Time Square. I am the only California
lawyer involved in this DOJ investigation.
Jim: Why is the DOJ auditing hotels about ADA compliance?
A complaint was lodged by a disabled tourist with the DOJ against one
of the 60 Theater District hotels, not our client's property. Some of the
hotels are over 100 years old, while others are newly built or renovated
Marty: Well, the DOJ has primary jurisdiction to enforce the
ADA- a piece of Civil Rights legislation passed by Congress in 1990 that
is intended to prohibit discrimination based on disability, giving the
disabled population full and equal access to places of public accommodation.
Since there is no federal "building department" which is responsible for
enforcing the ADA in private construction, the DOJ has left enforcement
of the ADA to local building departments. However, when serious violations
are brought to the attention of the DOJ in areas where significant and
high profile industry-wide impacts can be achieved, the DOJ, through the
offices of local U.S. Attorneys' offices around the country, will enforce
Jim: And will you remind our readers how that relates to hotels?
Marty: Sure. The ADA is divided into five "titles" or sections.
Hotel owners and lawyers are most familiar with Title III which addresses
places of public accommodation and mandates the removal of architectural
and communication barriers, requires modifications in policies and procedures,
and provides for other accessible services.
Jim: Were hotel owners the target of the survey or did they specify
Marty: It was fairly inclusive -- the survey, signed under
penalty of perjury, was sent to owners, managers, and their corporate organizations.
And the survey specifically included all other hotel properties owned or
operated by the hotel and management companies in that jurisdiction.
Jim: And what kinds of properties were included in the survey -- are
they looking at just the high end hotels?
Marty: The survey included nearly every property within a mile
of the Time Square Theater District without differentiation--all kinds
of properties: boutique, luxury, national brands, limited service - no
type of property was immune. What the hotels had in common was their proximity
to Time Square.
Jim: So tell us about this survey, The Manhattan Hotels ADA Compliance
Marty: The 20-page survey document is called "The Manhattan
Hotels ADA Compliance Review" and it was mailed to 60 Manhattan hotels
early in 2005. The questionnaire details every aspect of the ADA that applies
to hotels, and the hotels were given 30 days to respond under oath. Depending
on the survey responses and the DOJ's informal survey by its access consultant,
the hotel was either deemed compliant or was scrutinized more carefully.
Jim: What kinds of items were included in the 20-page questionnaire?
Marty: I have been doing ADA audits for more than 10 years,
and I can assure you that the survey was comprehensive in scope. It included
ADA standards well-understood in the hotel industry such as: accessible
parking, public entrances, reception areas, paths of travel, conference
rooms, fitness rooms, pools, accessible guest rooms and of equal importance,
dispersal of accessible guestrooms across the full range of available rooms,
locations, floors, views, and similar important factors. This is not a
"drive-by" snapshot as we have seen. It is a comprehensive survey of the
hotel's accessibility features. The DOJ is interested in reviewing the
hotel's written ADA policies, practices and procedures manual.
Jim: What level of detail was required for each of these areas?
Marty: The level of detail required was significant. The DOJ
wants to know not only if the hotel had the required number of guest rooms
for disabled guests, the required number of rooms with roll-in showers,
and the number of rooms for the hearing impaired. They want to know if
these rooms are dispersed equally among types of rooms, and each type of
suites, smoking / non-smoking; king beds / double beds; rooms with views
/ without views; spread equally among all floors. They want to know how
these rooms are priced relative to other rooms. The DOJ wants to know about
on-property and on-line registration and check-in policies and procedures.
Jim: What areas on the survey were unexpected?
Marty: Some hotels were surprised that the DOJ asked for written
policies and procedures relative to disabled guests and accommodations.
If modifications were made to accommodate the ADA in the past, the DOJ
wanted a copy of the permits for the work performed. The DOJ has asked
for "as built" drawings which are then reviewed by the DOJ's architectural
staff for ADA compliance. The DOJ doesn't leave any stones unturned. They
asked hotels for any imminent plans for ADA modifications, as well as for
those planned in the next 3, 6 and 12 months.
Jim: So, after the hotels sent in responses, what happened next?
Marty: A team of experts from Main Justice and from the New
York Attorney General's office made on-site inspections to verify the information
provided by each hotel. The team included investigators, architects specializing
in accessible design and other professionals.
Jim: And after the site inspection what happened?
Marty: It is an on-going process. The DOJ and New York U.S.
Attorney's office are very serious about ADA compliance. Hotels are making
architectural changes as well as implementing new policies and procedures,
depending on the results of the site inspection.
Jim: Are there properties that are refusing to participate or
not moving fast enough for the DOJ?
Marty: Initially, there were a number of hotels that dragged
their heels and a few that refused to cooperate. That was a big mistake,
in my opinion. The DOJ and the New York AG are committed to a barrier-free
hotel industry and can impose penalties as well as file lawsuits. Hotels
are not, and should not be interested in either of those scenarios. Likewise,
the DOJ would prefer to enter into a Voluntary Compliance Agreement with
the hotels rather than to force compliance through litigation.
Jim: What has your role been as counsel to certain hotels involved in
Marty: My role has been to protect the owner and management
company by conducting an independent survey of our client's hotel, assessing
the level of accessibility, retaining experts, recommending cost-effective
barrier removal strategies, presenting the facts to the DOJ and negotiating
a reasonable resolution, taking into account the DOJ's objectives and the
resources of the hotel.
Jim: But what if you don't have a hotel in New York? Should you care
You know, Jim, I am the only California-based attorney that has been
involved in this process. It has allowed us to keep our finger on the pulse
of ADA enforcement activity and help our clients nationwide to bring their
properties up to the standards required by the DOJ in New York and to give
our clients a heads up on the DOJ's investigations nationally.
Marty: Yes, absolutely you should care. First, barrier removal
is required by law and is good for business. The DOJ's reach is nationwide
and it is possible they will target other cities like Boston, San Francisco,
Chicago, Miami, Orlando, and San Diego -- cities that attract a large tourist
population. The DOJ would engage the help of the Attorney General's office
in those jurisdictions.
Jim: How is the DOJ survey and inspection process different from
the ADA audits you perform and your work in defending ADA lawsuits?
Marty: Our ADA compliance audits are very thorough - we cover
all the areas included in the DOJ's survey. But the stakes are much higher
with Main Justice and the Attorney General's office involved.
Jim: Why is that?
Marty: Because hotel clients that have experienced ADA litigation
-- particularly in California where plaintiffs can recover actual, punitive
and statutory damages, as well as attorneys fees -- understand that the
lawsuit is quite often about the money and less about strict compliance
with the ADA Standards. You begin to question their true motives. While
there are legitimate plaintiffs' groups working toward increased ADA compliance,
there are many others that are of the "sue and settle" variety: they seem
to be more interested in the payment of damages and attorney's fees and
less interested in the removal of architectural barriers or changes in
hotel procedures. What you have in Manhattan is the highest level government
enforcement agency pursuing real change. The DOJ and the AG have the resources
to follow up repeatedly, and the muscle to enforce change.
Jim: So, if I am a hotel owner or operator, and I receive this 20-page
questionnaire about ADA compliance, what should I do first?
Marty: Of course, the first thing to do is to call your ADA
About the Author:
Jim Butler is one of the top hotel lawyers in the world. GOOGLE “hotel
lawyer” or “hotel mixed-use” or “condo hotel lawyer” and you will see why.
He devotes 100% of his practice to hospitality, representing hotel owners,
developers and lenders. Jim leads JMBM’s Global Hospitality Group®—a
team of 50 seasoned professionals with more than $40 billion of hotel transactional
experience, involving more than 1,000 properties located around the globe.
In the last 5 years alone, they have brought their practical advice to
more than 80 “hotel-enhanced mixed-use” projects, a term Jim coined to
fill a void in industry lexicon. This term describes one of the hottest
developments in real estate-where hotels work together with shopping center,
residential, office, retail, spa and sports facility components to mutually
enhance the entire project’s excitement and success. Jim and his team are
more than “just” great hotel lawyers. They are also hospitality consultants
and business advisors. They are deal makers. They can help
find the right operator or capital provider. They know who to call and
how to reach them. They are a major gateway of hotel finance, facilitating
the flow of capital with their legal skill, hospitality industry knowledge
and ability to find the right “fit” for all parts of the capital stack.
Because they are part of the very fabric of the hotel industry, they are
able to help clients identify key business goals, assemble the right team,
strategize the approach to optimize value and then get the deal done.
Jim is the author of the Hotel Law Blog, www.HotelLawBlog.com. He
can be reached at +1 310.201.3526 or firstname.lastname@example.org.