News for the Hospitality Executive
ADA Enforcement Sweeps
Hit the West Coast
Exactly What Does this Mean to the Lodging Industry?
By Jim Butler and the Global Hospitality Group®,
June 29, 2010
The Department of Justice (DOJ) is conducting in-depth investigations of hotels to determine whether they comply with the Americans with Disabilities Act or ADA. The investigations are called "sweeps" because they typically target all hotels in a given geographic area. One of the first notable ADA sweeps hit all the hotels in Manhattan's Theater District, where we actively assisted clients.
A few days ago, we were contacted by a hotel in Portland, Oregon that had just received an investigative survey from DOJ. It appears that a similar sweep operation is being initiated there. We have also received information indicating that an ADA sweep might hit San Francisco in the near future.
Here is what you need to know about the sweeps, how they can affect you, and what you need to do.
ADA enforcement "sweeps"
Exactly what does this mean to the lodging industry?
As discussed below, the new sweeps are a "warning shot" - something that all lodging operators should take very seriously, and they should start working NOW to be prepared for these investigations.
But this is only the tip of the iceberg in terms of what lodging professionals should be thinking of in terms of accessibility compliance. In this article and the next one, I will interview Senior Members of JMBM's Global Hospitality Group® who lead our ADA defense practice for owners and operators.
Marty Orlick is one of the top ADA lawyers in the country, with more than 300 ADA lawsuits and investigations under his belt, and he is actively involved in defending hotels that are included in the DOJ's ADA survey.
What if I receive an ADA Compliance Questionnaire from DOJ?
Jim Butler: If I am the owner or manager of a hotel and get an envelope from the DOJ with one of its ADA Compliance Review questionnaires, what should I do?
Marty Orlick: First, take it very seriously! Get the questionnaire to the right person as quickly as possible. You want an experienced ADA defense lawyer to walk you through these deceptively simple questions. DOJ is surveying both hotel owners and managers, and the last thing you want is for this document to be sitting in someone's inbox while the person tries to figure out what it means and who should be dealing with it. Every question on the form has been carefully drafted to elicit important information about ADA compliance. The survey is specifically focused on identifying architectural and communications (e.g., signage) access barriers and, equally important, your hotel's ADA policies and procedures. It is very detailed. Completing the questionnaire will take time and careful thought.Jim Butler: Why can't a knowledgeable hotel professional answer the questionnaire? Why should a lawyer -- much less an ADA defense lawyer -- get involved?
Marty Orlick: Each question is designed to obtain precise information about complex, technical compliance with the ADA guidelines. The forms must be completed under penalty of perjury, so wrong answers could subject someone to criminal penalties or create other unfortunate liabilities. Your answers can also help you to clarify the hotel's accessability features, policies and procedures.Jim Butler: Give us an example of a question that could cause a hotelier problems.
Marty Orlick: Questions about guest rooms have to be answered with great care. The questionnaire will likely ask for a description of all room categories in the hotel, and the number of accessible rooms in each distinct room class, because the ADA generally requires hotels to provide accessible rooms in each class. The thing you have to ask is: "What is a "category" or "room class"? In answering the questionnaire, you should NOT list each marketing or price-point category, as opposed to room types that are actually functionally the same accommodations but have minor differences. If you did, you would create a problem. Your hotel may have many marketing-driven categories for rooms, but in actuality your rooms may simply be singles, doubles, queens, kings and suites.Jim Butler: Does the survey focus solely on accessibility-related building standards?
Marty Orlick: No. Not by a long shot. The ADA Compliance Review also specifically focuses on the hotel's written accessibility policies and procedures -- or lack of them. So, the ADA defense lawyer should ask you to start pulling together documentation. We need to review the written ADA policies and procedures that are provided to staff to see what they look like. Policies and procedure manuals should detail all the devices installed and all the processes the hotel has established for serving disabled guests.Jim Butler: Give us some examples of what those policies and procedures should include.
Marty Orlick: Any hotel's written policies and procedures manuals should cover all aspects of its operations as they pertain to disabled individuals and those who travel or are associated with them. This would include such things as:
Simply put, this is too important to mess up. You want an ADA expert's guidance to do this right and avoid unnecessary problems.
Marty Orlick: ADA Compliance is an area where an ounce of prevention can be worth a pound of cure. If brought in early enough, we may be able to counsel on relatively few changes that could make an important difference to the investigation.
Martin H. Orlick is a senior member of the law firm's Global Hospitality Group® and a partner in the Firm's Real Estate Department. He has helped clients with more than 300 ADA cases for hotels and other businesses. He is also a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Martin H. Orlick at 415.984.9667 or firstname.lastname@example.org.
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@example.com. or 310.201.3526.
|Also See:||Is the DOJ's ADA Compliance Survey Coming to Your City Soon? What to do when you receive the DOJ's ADA Compliance Review questionnaire / Jim Butler / December 2009|