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Buying a Hotel?
Don't Buy an ADA Lawsuit or DOJ Investigation

 

By Jim Butler and the Global Hospitality Group®, 
Author of www.HotelLawBlog.com
March 1, 2011

For the most recent update on this topic, click here

Many investors view our current economic downtime as the perfect opportunity to purchase distressed hotel and motel assets at substantial discounts. Before any of these investors complete a purchase transaction, however, they should add one more item to their due diligence checklist: whether the hotel's physical property and operating procedures comply with the Americans with Disabilities Act (ADA), and similar state statues.

JMBM Global Hospitality Group® member, Eudeen Chang, defends hotels in ADA litigation and explains to investors how the ADA can effect their hotel investment.

Hotel Buyer Beware: When you buy a hotel, don't buy an ADA lawsuit
by
Eudeen Chang | Hotel Lawyer, JMBM Global Hospitality Group®


The current legal landscape of ADA enforcement

Private plaintiff lawsuits:

The last decade has seen an explosion of private plaintiff lawsuits, including class actions and actions against individual hotels (and other properties classified as "public accommodations"), alleging violations of the ADA. In states like California where ADA plaintiffs can recover actual, punitive and statutory damages, individual plaintiffs of the "sue-and settle" variety have filed thousands of lawsuits claiming nearly identical violations at numerous locations.

DOJ investigations:
In addition to private plaintiff lawsuits, the United States Department of Justice also has actively sought to enforce the ADA in the form of individual property investigations, geographical sweeps, and system-wide investigations.

Individual property investigations. A DOJ investigation of an individual property often begins with a guest complaint at a particular hotel which is ignored or poorly handled by the owner or operator. Matters commonly escalate if the guest files a formal ADA complaint with the DOJ's Civil Rights Division. All complaints are actively investigated.

Geographic sweeps. The DOJ has also instituted geographical "sweeps" such as the New York Times Square/Theater District investigations from several years ago. This comprehensive ADA investigation of 60 Times Square hotels - including boutique hotels and international flag properties - was initiated after a single guest's complaint. It was a targeted investigation.

System-wide investigations. The DOJ has also initiated a number of system-wide investigations against the nation's leading hotels and retailers. Over the years, the DOJ has litigated or otherwise negotiated Consent Orders or Decrees with other prominent hotel flags such as Ramada Ltd. (2010), Days Inns of America, Inc. (1999), Marriott International, Inc., Courtyard Management Corporation (1996), Motel 6 Operating LP (2004 and 2007) and Bass Hotels and Resorts (1998). In November 2010, the DOJ and Hilton Worldwide, Inc. entered into a 45-page "comprehensive precedent-setting agreement under the ADA that will make state-of-the-art accessibility changes to approximately 900 hotels nationwide."

What it means to hotel investors
The current legal landscape has created a new reality for investors. It is very possible for an investor, when purchasing a hotel or motel, to buy itself an ADA lawsuit. The property may contain architectural barriers that violate the ADA and may give rise to a private plaintiff lawsuit and/or a complaint to the DOJ that leads to a DOJ investigation. The policies and procedures of the hotel operation may also be in violation of the ADA. (Procedures would include items such as online and third-party reservations, how to deal with service animals or how to ensure that the number of guest rooms which must be fully accessible are available.) It is also possible the hotel may be currently under investigation by the DOJ, or is currently the subject of an ADA lawsuit. We are currently representing two buyers, including a foreclosure buyer who inherited a DOJ Consent Order or investigation.

Moreover, substantial revisions to the Americans with Disabilities Act Accessibility Guidelines (ADAAG) were included in the DOJ's revised 2010 regulations that implement the ADA. These new regulations go into effect on March 15, 2011 (with certain exceptions, and those go into effect on March 15, 2012). The new 2010 standards impose both technical requirements, (e.g. the specifications a property must meet to be fully accessible), and scoping requirements (e.g. the number of rooms or elements in a facility which must be fully accessible). It is possible that a hotel that has been in compliance with the ADA in the past, will not be in compliance in the near future.

It is imperative that an investor protect itself before completing a purchase transaction, by performing due diligence in this area. For example, if potential ADA violations exist, the investor can either require that the seller correct the problems as a condition of closing, obtain an estimate for the barrier removal and demand from the seller a credit in escrow or to reduce the purchase price accordingly. Prior to completing a purchase, the investor should consider performing due diligence in three broad areas:

  • Legal. Determine whether the property is being investigated by the DOJ or if there are existing ADA lawsuits against the owner or operator;
  • Architectural. Retain an ADA consultant to survey the property and determine whether architectural barriers exist; and
  • Operational. Determine whether the hotel's operator has effective policies and procedures for serving disabled guests.

If the property is in California, the investor can also seek protection under California's 2009 Construction-Related Accessibility Standards Compliance Act which is designed to curb abusive ADA litigation through the Certified Access Specialist program (CASp). CASp enables business to go through a process to "certify" that their facilities meet state and federal accessibility standards. One benefit CASp offers is that business owners with certification have the option to stay or stop all construction-related ADA litigation initiated against them in state court, and instead proceed to mediation, making it possible to avoid expensive and lengthy proceedings that drive up legal fees.
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Eudeen Chang is a lawyer in the Litigation Department of JMBM's Orange County office and a member of JMBM's Global Hospitality Group®. He represents hotel owners in a variety of litigation matters including hotel management agreement disputes, loan and debt restructurings, receiverships, and ADA defense. He is well-versed in all aspects of litigation, from pre-lawsuit strategizing to trial, post-judgment collection and through appeal. Eudeen conducts business in both English and Chinese (Mandarin). Contact Eudeen at EChang@jmbm.com or 949.623.7232.
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Other articles on ADA

If you found this article of interest, you may want to check out some of the other articles on this topic on www.HotelLawBlog.com which can all be found under the "HOTEL LAW TOPIC" of "ADA" at the top of the home page (or by clicking here).
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This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We've done more than $60 billion of hotel transactions and have developed innovative solutions to unlock value from troubled hotel transactions. Who's your hotel lawyer?


Our Perspective. We represent hotel lenders, owners and investors. We have helped our clients find business and legal solutions for more than $60 billion of hotel transactions, involving more than 1,000 properties all over the world. For more information, please contact Jim Butler at jbutler@jmbm.com or 310.201.3526.

Jim Butler is a founding partner of JMBM and Chairman of its Global Hospitality Group®. Jim is one of the top hospitality attorneys in the world. GOOGLE "hotel lawyer" and you will see why.

JMBM's troubled asset team has handled more than 1,000 receiverships and many complex insolvency issues. But Jim and his team are more than "just" great hotel lawyers. They are also hospitality consultants and business advisors. For example, they have developed some unique proprietary approaches to unlock value in underwater hotels that can benefit lenders, borrowers and investors. (GOOGLE "JMBM SAVE® program".)

Whether it is a troubled investment or new transaction, JMBM's Global Hospitality Group® creates legal and business solutions for hotel owners and lenders. They are deal makers. They can help find the right operator or capital provider. They know who to call and how to reach them.
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Contact: 

Jim Butler
Chairman, Global Hospitality Group
Jeffer, Mangels, Butler & Marmaro LLP
1900 Avenue of the Stars, 7th Floor
Los Angeles, CA 90067-4308
(310) 201-3526 direct
jbutler@jmbm.com
www.HotelLawBlog.com

 

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Also See: Hotel Lawyer on Hotel Management Agreements: Exculpation Clauses for Protecting the Owner's Assets / Jim Butler / February 2011

ADA Defense Lawyer: How to handle an ADA lawsuit....and How not to do it / Jim Butler / February 2011

Hotel Lawyer: 5 Key Elements for Good Hotel Management Agreement Budget Provisions / Jim Butler / February 2011

How improving fundamentals make 2011 the year of "Great Expectations" for the Hotel Industry / Jim Butler / February 2011

Ask the Hotel Lawyer: 2011 is starting as the year of "Great Expectations" for the hotel industry! / Jim Butler / January 2011

Hotel ADA Defense Lawyer: How a recent ADA case affects all hotels but particularly conference centers and meeting hotels / Jim Butler / January 2011

Hotel Lawyer: So, You Think You Want to Buy a Hotel? For savvy investors, the time could be right / Jim Butler / January 2011

Sheraton Universal Hotel Sale Facilitated by JMBM's Global Hospitality Group® / Jim Butler / January 2011

New York Times: Hotel Sector May Lead Economic Recovery / Jim Butler / December 2010

ADA Defense Lawyer: California's Certified Access Specialist program -- Does it provide all of the intended ADA protections? / Jim Butler / December 2010

How "Standards" Can Protect Your Hotel Mixed-use Assets . . . / Jim Butler / November 2010

Hotel Lawyer: Checklist for Negotiating Hotel Management Agreements/Hotel Operating Agreements - The HMA PRO™ Checklist / Jim Butler / November 2010

Distress Continues for Hotels and Commercial Real Estate: New Data Suggests 8 year Downturn, Dismal Prospects and Increased Foreclosures / Jim Butler / October 2010

Atlas 2009 Year End Hotel Survey . . . and What it Means / Jim Butler / February 2010
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