By Jim Butler, March 29, 2010

Hoteliers can face certain extreme situations that are not addressed in plain language of Title III of the Americans with Disabilities Act (ADA). In relevant part, it provides that, among other requirements, places of "public accommodation" must provide certain "auxiliary aides and services". In these unusual cases, the counsel of an experienced ADA lawyer like Marty Orlick, a senior member of JMBM's Global Hospitality Group®, is invaluable. He has helped numerous hotels and restaurant clients establish compliance with all aspects of the ADA and resolve more than 300 ADA claims.

Today, Marty provides some very practical advice on dealing with exceptional situations with disabled guests.

Hotels and the ADA: How far do the responsibilities of hotel owners
and managers extend to their disabled guests?

by Martin H. Orlick

As many hotel owners know, both Title III of the Americans with Disabilities Act (ADA) and California law mandates that all public accommodations--including virtually all hotels and inns--remove architectural and communication barriers, modify their policies and procedures, and provide other auxiliary aides and accessible services. But these requirements can be difficult to understand even for the most experienced lodging owners. In particular, many of our hotel clients struggle to define what "auxiliary aides and services" imply for their business and how they can comply with federal ADA standards when certain extreme situations occur.

Take for example, a recent suit: A paralyzed guest filed a federal lawsuit against an Akron, Ohio hotel after he was "banned" for accidentally soiling his linens because his colostomy bag failed while he was asleep. Though he paid for the linens and left the maid a hefty tip, he was told by a night desk clerk that he was "banned for life" by the hotel manager when he attempted to stay at the hotel again. He is now suing the hotel under the Americans with Disabilities Act for discrimination against the disabled.

Was the hotel manager's decision to "ban" the disabled guest legally justified? Or, should the hotel have rightfully provided special personal services? This is not an easy question to answer, but here are some guidelines to clarify ADA boundaries.

The ADA requires public accommodations to provide auxiliary aides and services to disabled guests; however, it specifically does not require a public accommodation to provide customers, clients or participants with personal devices such as wheelchairs, and individually prescribed devices, such as prescription eyeglasses or hearing aides, or services of a personal nature, including assistance in eating, toileting or dressing. Does this umbrella of personal assistance include cleaning up a disabled guest's biological waste? Not only have employees not been generally trained to handle human waste, but the situation also presents hazardous public health issues for staff and other guests.

While this case is extreme, it is common for hotel guests, including those who are disabled, to have needs that go beyond the typical lodging services provided for guests in general. It is important to remember that hotels are not hospitals or nursing homes. Hotels have a responsibility to individuals with disabilities to ensure that they receive the privileges that the facilities offer as fully as possible, but not when the need fundamentally alters the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or places an undue burden on hotel staff.

On the other hand, the types of auxiliary aides and services that a hotel should provide include: telecommunications devices and services for deaf or hearing impaired guests, a means of decoding captions for individuals with impaired hearing in places of lodging that provides televisions in five or more guest rooms, an effective method of making visually delivered materials available to individuals with visual impairment, and services that ensure effective communication with disabled individuals.

The level of service a hotel should provide to comply with the ADA can be unclear. Combined with weaving your way through federal and state laws, compliance can turn into more of a maze than a hotel owner would expect. The cost to lodging operators in litigation each year is many millions of dollars. Now is the time to get to know your hotel's policies and procedures. Call an ADA lawyer to make sure your hotel is in compliance.

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Martin H. Orlick is a senior member of JMBM's Global Hospitality Group® and a partner in the Firm's Real Estate Department. He has helped clients defend more than 300 ADA cases for hotels, restaurants and other types of commercial real estate. He is also a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty at 415.984.9667 [email protected].

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. For more information, please contact Jim Butler at [email protected]. or 310.201.3526.