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The Global Hospitality Advisor

ADA Lawsuit Alert:
Beware the Internet “Surf-by”
A new twist on the ADA “drive-by” lawsuit

September 2004

The hospitality industry has long been vulnerable to “drive-by” lawsuits by disability advocacy groups who send a disabled “guest” to your hotel. They come, not to enjoy a meal, get a night’s rest or enjoy a holiday respite, but to count accessible parking spaces, check the paths of travel from the parking lot to the entrance of your establishment, and to measure the width of the entrance doors. After checking for a host of often highly-technical violations, the professional plaintiff files a lawsuit against you under the Americans With Disabilities Act (ADA) and related state law. 

We are now seeing a new variation of the ADA drive-by: the Internet “surf-by.” 

Internet Reservations:  Do You Provide Enough Information to Avoid Liability?

Here’s how the wave crashes on the unsuspecting hotel owner. A web surfer uses the Internet to book a hotel room and the website doesn’t offer adequate information for disabled users. The site doesn’t specify the number of accessible rooms available, or if it does, it doesn’t list the amenities available in those rooms. Is there a roll-in shower? (Roll-in showers were not required in older hotels.) Do accessible rooms span the full range of room offerings? Is there a strobe emergency warning system for visually and hearing impaired guests? The surfer calls the hotel to determine if the room booked online, (and in many cases, to get the best rate, the room must be booked online), will meet the needs of their disability. If not, a little research by a disability advocacy group will determine how the complaint is filed. 

In one case where we are currently defending the owner, the plaintiff claims physical, psychological and emotional injury because an accessible room with a roll-in shower was unavailable–and the plaintiff never showed up at the hotel in person!  In May 2002, this plaintiff claims that he booked a room online, and then called the hotel to confirm that a room with a roll-in shower was available. According to the complaint, the plaintiff learned from the reservation desk that the hotel had no rooms with roll-in showers and that the property had 102 rooms. 

Federal ADA Accessibility Guidelines
for Buildings and Facilities (ADAAG)

How to read this chart:  A property with 120 rooms must have 5 accessible rooms PLUS 2 more accessible rooms with roll-in showers, for a total of 7 rooms.  A property with 120 rooms must have a total of 7 accessible rooms wired for the hearing impaired; PLUS an additional 5 non-accessible rooms must be so wired, for a total of 12 rooms.

Additional requirements in California:

  • Hotels constructed after November 2002 are required to have at least one-roll in shower in its accessible guest room regardless of the number of rooms in the establishment.
  • Visual emergency strobes for the hearing impaired must be hardwired, not portable, unless they conform to specifications of the California State Fire Marshal.
The plaintiff then cancelled the reservation and never bothered to visit the property. In July 2003, the plaintiff filed a lawsuit against the hotel and its owners for injunctive relief, damages ($4,000 per occurrence from the date of the plaintiff’s contact), and attorneys’ fees under the ADA and applicable California statutes.  This is typical of many such complaints.

In another current surf-by case, the plaintiff tried to book a reservation online.  According to the complaint in that case, when the plaintiff discovered there were no roll-in showers, she allegedly suffered severe emotional and physical injuries for which she now seeks payment.

How to Avoid Being Wiped-out by ADA Surf-bys

We have seen some of these ADA lawsuits cost a hotel up to $200,000.  Until the government amends the law to provide a “period to cure” claimed violations before a lawsuit can be filed, the best way to avoid this kind of shakedown is to ensure that your properties are in compliance with the ADA. A hotel’s policies, procedures, and practices with respect to the ADA should be apparent to disabled guests and advocacy groups when they review the hotel’s website and online reservation systems.  The absence of clear information about “accessibility” is a beacon for targeted litigation by advocacy groups.  At a minimum, the information on your website should include:

  • The number of accessible rooms available
  • If the accessible room(s) available include roll-in showers and other amenities
  • If rooms available are wired for the visual and hearing impaired 
Be sure to investigate all online reservation systems that can book rooms for your establishment. Although many hotels’ websites give web surfers information on accessibility, the widely used third-party reservation sites and other distribution channels may not reflect your hotel’s ADA policies, practices and procedures.  Providing all sites with current, accurate information about accessibility at your establishment is critical, as is checking periodically to ensure they accurately reflect your hotel’s policies and procedures. All reservation staff must be familiar with the hotel's accessible features.

Monitoring the Tide: Website Accessibility

As we continue to monitor ADA claims nationwide for trends, we are watching for more movement on the cyber front. In the leading case on Internet accessibility (Access Now, Inc., a Florida nonprofit corporation v. Southwest Airlines Co., S.D. Florida, 2002) the Court concluded that the ADA does not mandate that Internet websites provide complete access to visually impaired individuals. The Court recognized that plaintiffs were clearly able to access Southwest Airline’s services via other means such as the telephone, ticket counters and through travel agents. However, the Court acknowledged that not all courts feel so constrained by the statutory language of the ADA to limit its application to brick and mortar accommodations.  Since that time, a Georgia court has decided that Atlanta’s public transit district is required to make its website accessible to the visually impaired. Further, the mandated development of an accessible format for federal websites may create momentum for private sector Internet accommodations. The standard federal website format could create the template for civil suits against private companies.

There is no doubt about it. A tidal wave of ADA lawsuits is engulfing the hospitality industry. But you don’t have to get swept out with the tide.  If you are the victim of an ADA lawsuit, an experienced ADA lawyer can navigate you safely back to shore. Even better, with the right preventative strategy, you’ll stay out of the water completely.

Marty Orlick is a senior member of the Global Hospitality Group and a partner in the Real Estate Department. Marty has been representing developers, landlord, lenders, national, regional and local tenants, design professionals and real estate brokers for 26 years. He specializes in shopping center, office and industrial leasing, sales and acquisitions, land use, Americans and Disabilities Act defense, eminent domain, real estate litigation and trial work. Marty has successfully litigated over 100 ADA cases for hotels, restaurants, retailers, banks, wineries and other commercial property owners. You may reach Marty at 415.984.9667 or [email protected].

The Global Hospitality Group® is a registered trademark of Jeffer, Mangels, Butler & Marmaro LLP

©2004 Jeffer, Mangels, Butler & Marmaro LLP


For more information:
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Jim Butler at the Firm
 Jeffer, Mangels, Butler & Marmaro LLP
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Also See: Hotel Unions Challenging Work Rules Found in Hotel Employer / The Global Hospitality Advisor Handbooks; Claim Interference with Employees’ Rights to Organize / JMBM / October 2003
Wage and Hour Lawsuits and Audits Continue to Sweep the Hospitality Industry / The Global Hospitality Advisor / JMBM / October 2003
Prepare NOW for an ADA Attack; Myths and Tips on How to Minimize Exposure / The Global Hospitality Advisor / JMBM / October 2003
Sarbanes-Oxley Update / The Global Hospitality Advisor / JMBM / Arpil 2003
Equal Public Access or Access to Deep Pockets? The Hospitality Industry Remains a Target of Lawsuits by Disability Rights Groups Under the Americans with Disabilities Act / The Global Hospitality Advisor / JMBM / March 2003
Outlook 2003: A Roundtable Discussion / The Global Hospitality Advisor / JMBM / Dec 2002 
Time Bomb Waiting to Explode: Wage & hour Claims Over Exempt Employees / The Global Hospitality Advisor / JMBM / Oct 2002
I'm Mad as Hell, and I'm Not Going to Take it Anymore! / The Global Hospitality Advisor / JMBM / Oct 2002
Settlement Procedure Available to California Hotels Plagued by Prop 65 Cases - The Global Hospitality Advisor / April  2002 
Top Ten Investment Challenges Facing the Lodging Industry / Lodging Industry Investment Council / April 2002 
Decertifying a Union? The Employer’s Bill of Rights / The Global Hospitality Advisor / JMBM / April 2002 
Outlook 2002: A Roundtable Discussion /  Bruce Baltin, Bjorn Hanson, Randy Smith, Jack Westergom - The Global Hospitality Advisor / January 2002 
New Rules for Hotel Workouts: REMICs for Dummies / The Global Hospitality Advisor / JMBM / December 2001 
Living in the Wake: Predictions & Practical Implications / The Global Hospitality Advisor / JMBM / December 2001 
Avoiding Liability for Lay-Offs / The Global Hospitality Advisor / December 2001
The Worker Adustment and Retraining Notification Act: Impact on the Hotel Industry / JMBM 
When is an Apartment a Hotel ... and Who Cares? / The Global Hospitality Advisor / JMBM / September 2001 
The 'Perfect Storm' / The Global Hospitality Advisor / JMBM / September 2001 
Richard Kessler's Grand Theme Hotels - Interview with GHG Chairman  Jim Butler / March 2001
Stephen Rushmore's  Industry Trends / Top Markets, Predictions & Opportunities  / Jan 2001
Outlook 2001: A Roundtable Discussion The Global Hospitality Advisor / Jan 2001
Perspectives on Hotel Financing in 2001; Jim Butler, JMBM's Global Hospitality Group Chairman, Interviews Two Active Players in Hotel Finance / Jan 2001 
Robert J. Morse: Millennium’s New President / Interview with GHG Chairman Jim Butler / Nov 2000 
Special Reports / Jeffer, Mangels, Butler & Marmaro LLP

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