News for the Hospitality Executive
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
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.
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."
it means to hotel investors
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.
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
correct the problems as a condition of closing, obtain an estimate for
barrier removal and demand from the seller a credit in escrow or to
purchase price accordingly. Prior to completing a purchase, the
consider performing due diligence in three broad areas:
the property is in
California, the investor can also seek protection under California's
Construction-Related Accessibility Standards Compliance Act which is
to curb abusive ADA litigation through the Certified Access Specialist
(CASp). CASp enables business to go through a process to "certify"
that their facilities meet state and federal accessibility standards.
benefit CASp offers is that business owners with certification have the
to stay or stop all construction-related ADA litigation initiated
in state court, and instead proceed to mediation, making it possible to
expensive and lengthy proceedings that drive up legal fees.
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).
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 [email protected] 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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