News for the Hospitality Executive
Hotel ADA Defense Lawyer: How a recent ADA case affects all hotels but
By Jim Butler and the Global Hospitality Group®,
Author of www.HotelLawBlog.com
January 24, 2011
For the most
recent update on this topic, click here
do movie theaters and hotels have in common? For one thing, both movie
and hotels are considered "public accommodations" under the Americans
with Disabilities Act (ADA) and both are required to provide disabled
equal access to facilities, including accessibility to movies,
other audio and video presentations. In some instances, new technology
it easier to achieve equal access... but it still can be a challenge.
recent class action filed against Cinemark USA Inc. for discrimination
hearing impaired individuals due to lack of closed-captioning in
have broad implications for hotels, particularly conference centers and
which cater to meetings and group business, in addition to hotels which
to state organizations and governmental groups.
talking about this case the other day with my partner, ADA defense
Orlick. Marty is an expert in ADA defense and counseling, having
owners and operators of properties in more than 400 cases. After a
collaboration, Marty put together a summary of the Cinemark case and
implications for the hotel industry. There is more to it than meets the
responsibilities do hotels have to deaf and hard of hearing guests? And
are the exceptions? How do hotels best protect themselves? How do
maximize business opportunities by providing auxiliary aides and
Ask the ADA
Does the ADA now require all hotels to provide personal hearing or
caption devices for deaf and hard of hearing guests? What's next?
Orlick | JMBM Global
November 2010, a disability rights group launched class action
against Cinemark's theaters in California on behalf of "The Association
Late Deafened Adults." In its complaint, the group accused Cinemark of
discriminatory practices against deaf and hard of hearing patrons due
"consistent refusal" to provide closed (and open) captioned theater
experiences at its theaters in Alameda County, California. Although the
is locally focused, it is of keen interest to the hotel industry and
implications are important.
The . . . ADA was created to ensure
equal access to "public accommodations" for disabled Americans. All
hotels qualify under the ADA as "public accommodations."
Why should hotel owners be concerned? Having defended more than 400 ADA
cases, I have learned
that there is a well-defined core of ADA plaintiffs and lawyers. We at
have seen most of them on multiple occasions. A few dozen of these
responsible for thousands of ADA lawsuits. Hotels should be concerned
this "community" of ADA plaintiffs and lawyers spawn a huge number of
lawsuits, often 5-10 per day in California alone. They tend to use
cat" procedures to proliferate the litigation. So once a particular
of action has been formulated, they will copy that form of complaint
it to other defendants they find in the hotel directories or websites.
some of these plaintiffs may be motivated by financial recovery, but
are genuinely committed to making the built environment more accessible
disabled whatever the cost. The publicity of attacking high profile
operators and owners helps them further that cause.
number of advocacy groups, attorneys and the Department of Justice are
focusing their resources on businesses that fail to provide effective
communications aids and services to deaf, hard of hearing and blind
The Cinemark lawsuit is the most recent attack in this vein.
believe that there are some strategies and approaches to minimize the
attractiveness of your hotel to such an attack, and to build a strong
if the attack comes.
the first and easiest targets of discriminatory theater experiences may
movie, concert and performing arts theaters, the next obvious targets
hotels where meetings and conferences are held. But you don't have to
elaborate conference center or rely on group business meetings to be a
target for these new ADA suits. Trust me on this, your hotel is already
sights of these plaintiffs. This is not about whether they will attack,
about when they will sue you.
Does this apply to my hotel? The legal perspective. The ADA was created to ensure full and equal access to "public accommodations" for disabled Americans. As noted earlier, all hotels are "public accommodations."
ensure equal access, public accommodations must ensure that no
a disability may be "treated differently than other individuals because
the absence of auxiliary aids and services." Included as examples of
"auxiliary aids and services" are closed caption, rear-window
captioning and open captioning for individuals who are deaf and hard of
hearing. With the advances in technology, it is argued that at least
of captioning is now required in virtually all hotel rooms, meeting
bars, restaurants, and other accommodations with televised services.
Nearly all television sets built since 1993 with screens of 13 inches
that are sold in the United States have closed captioning embedded in
television set. The closed captioning becomes visible when you use a
decoder, either as a separate box or built into the television set.)
even the no frills, "hard economy" hotel must deal with these issues
on television sets in guest rooms, as well as in a lobby or sports bar.
having the devices may not be enough if you don't also have
notices or cards advising guests what devices are available and how to
them. Staff, too, need to be trained on the use of auxiliary aides and
services. The recent Consent Order between the DOJ and Hilton
requires proof of such staff training.
Does the ADA require hotels to
impaired guests? In short, the answer is "yes." By law, hotels and
conference centers, as public accommodations, must provide auxiliary
services. However, public accommodations are not required to make every
possible device available or to meet the specific, specialized needs of
customer. Furthermore, what is required will be shaped by the services
safeguard from unreasonable ADA standards. The
ADA does have a safeguard that if provision of a particular auxiliary
service would result in a fundamental alteration of goods, services, or
undue burden, i.e., significant difficulty or expense, the ADA would
alternative auxiliary aid or service, if one exists, which would ensure
facilitation to the maximum extent for disabled individuals.
if the no frills hotel does not have any television sets for any rooms,
not have to provide television sets for hearing or vision impaired
as long as that no frills hotel does not have any meeting space or
it does not have to provide AV equipment for disabled guests.
Centers, Meeting and Group Hotels. But
that is why Jim Butler and I thought this case was particularly
conference center hotels, and those that cater to group and meeting
These hotels do provide a broad range of audio visual facilities for
conferences, presentations, class reunions, weddings, bar mitzvahs and
like. There are often extensive sound and video projection systems,
very reminiscent of movie theaters such as those involved in the
centers tend to have their meeting rooms fully-equipped with all the AV
equipment "built in" and hard wired. They will be the most like the
movie theaters in the Cinemark case and they will also be high profile
for the new crop of ADA plaintiffs. But all the luxury hotels like Four
Seasons, Ritz-Carlton, St. Regis, and even the large meeting hotels
many Marriotts, Hyatts, Hiltons, Westins, Sheratons, and the like will
attractive for these plaintiffs. Hotels that hold Bar Association and
state and federal agency functions should be acutely aware of the need
provide the latest technological advances in auxiliary aids and
auxiliary aids are required? The type of
auxiliary aid or service necessary to ensure effective communication
in accordance with the method of communication used by the individual;
nature, length and complexity of the communication; and the context
communication is taking place. A public accommodation should consult
individuals with disabilities whenever possible to determine what type
auxiliary aids or services are needed to ensure effective
the ultimate decision of what measure to take rests with the public
accommodation, provided that the method chosen results in effective
issues. There are a
host of related
issues that we are advising our clients on concerning the kinds of
(content, size, format, location, etc.) that should be given to all
about the availability of auxiliary devices. There are also some very
issues about what happens when AV equipment and set up is outsourced.
outsourced AV provider affiliated with the hotel? Does the hotel
financial benefit from use of the AV provider? Does the AV provider
auxiliary equipment available at reasonable prices, and do they, or
group provide notice of availability to disabled guests? Already, we
of one reported case which found the event promoter and the convention
liable for not complying with federal access laws. All these issues
scratch the surface, but you get the idea.
With the advances in technology, it is
argued that at least one form of captioning is now required in
hotel rooms, bars, restaurants, and other accommodations with televised
In the case of Cinemark, plaintiffs
argued that closed
captioning is available and affordable to theater owners and operators.
claim the cost to outfit each theater with closed captioning is less
$10,000, a small amount for the motion picture distributor which has
highest growth in total revenues among the three largest distributors
U.S. The same can be argued for a national flag hotel. While the case
Cinemark is in the pleading stage, we believe there are viable defenses
lawsuit under both state and federal accessibility laws, which will
be vigorously defended. This lawsuit is a mixture of advocacy and
law, but the solution is not as simple or inexpensive as plaintiffs
will keep you updated as the case moves toward class certification.
questions that every hotel owner and operator should ask themselves
compliance for visually impaired, deaf and hard of hearing guests:
If you answered "no" to any of these
or have been investigated by a state or federal authority about the
auxiliary aids and services you offer at your hotel, contact us to
you can avoid future ADA litigation.
As a safeguard for hotels and
centers, the ADA maintains that if provision of a particular auxiliary
service would result in a fundamental alteration of goods, services, or
undue burden . . .
We have seen lots of ADA case theories
developed over the
years, and each one fuels a new spate of lawsuits by copy cat
is the time to run your ADA audit, and develop you ADA strategies and
This is an area where being proactive makes a big difference. Now is
to update your policies, procedures and training.
help you find economical options that will satisfy ADA requirements and
your patrons will be able to enjoy your hotel the way it was intended.
battle for greater accessibility for deaf, hard of hearing, blind and
vision, and other disabled Americans continues, more ADA litigation is
inevitable. Prepare now!
H. Orlick is one of the top ADA defense lawyers in the country, having
clients with more than 400 ADA cases for hotels and other businesses.
also is a senior member of the law firm's Global Hospitality
Group®, a partner
in the real estate department, and a member of the American College of
Estate Lawyers (ACREL). For more information about ADA compliance and
contact Marty Orlick at 415.984.9667 or [email protected].
is Jim Butler, author of www.HotelLawBlog.com
and hotel lawyer, signing off. We've done more than $60 billion of
transactions and have developed innovative solutions to unlock value
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".)
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