May 30, 2012

ADA Compliance And Defense Lawyer: ADA Experts Discuss Hottest Issues Facing The Hotel Industry Today

At a recent gathering in Los Angeles, a group of ADA experts convened to discuss the hottest issues facing our industry. The panel was moderated by my colleague David Sudeck, who was kind enough to write an article for our readers summarizing some of the matters discussed. The PowerPoint presentation prepared by the panelists is also available by clicking here

By Jim Butler, Partner & Co-Chair Hospitality Practice, Blank Rome LLP, Blank Rome

In addition, David Sudeck and Marty Orlick, have written articles and been featured on several webinars, on the topic of Americans With Disabilities Act (ADA), as well as specifically on the new 2010 Regulations which came into effect in part on March 15, 2011 and in part on March 15, 2012 (other than the pool lift regulations, the implementation of which have been delayed, as discussed below). Please feel free to contact either one of them - [email protected] (David Sudeck) or [email protected] (Marty Orlick) for additional reference materials or if you would like to discuss your ADA compliance and defense questions.

Here is the summary of the panel discussion . . .

Latest insights from the experts on ADA issues

by David A. Sudeck, Senior Member of JMBM's Global Hospitality Group® and Moderator of the "ADA Compliance & Claims Prevention" Panel at the 2012 Meet the Money® conference

Experts on ADA Break-out Panel:

Panelists:

David Sudeck - Moderator, Senior Member of Global Hospitality Group® - Jeffer Mangels Butler & Mitchell LLP. David is a transactional hotel and timeshare attorney, and in that capacity frequently prepares written ADA Policies and Procedures for owners and managers in the hospitality industry.

Martin Orlick - Panelist, Partner and Chair of ADA Compliance and Litigation Group of Jeffer Mangels Butler & Mitchell LLP. Marty is experienced in counseling and defending clients with respect to Americans with Disabilities claims in State and Federal court and defending Department of Justice investigations and complaints, including negotiating Voluntary Compliance Agreements. His ADA practice includes counseling businesses on the full spectrum of ADA compliance.

Kim Blackseth, CASp - Panelist, President of Kim R. Blackseth, Interests, Inc. Kim was one of the first CASp certified specialists in California. He regularly provides expert testimony in connection with access cases, and he has done so for more than 1,000 cases. Kim and his team have nationwide experience and a reputation for timely, accurate work, with a combination of corporate, commercial real estate, architectural and building experience.

Kimberly Carter - Panelist, Associate Counsel for Montage Hotels & Resorts. Kimberly is the senior attorney at the company (which has three destination resorts -- in Laguna, Beverly Hills and Deer Valley), and she is responsible for overseeing legal compliance as part of her numerous responsibilities. She recently attended on-site accessibility training led by our own Marty Orlick.

John Farrow - Panelist, Founder and President of Farrow Commercial Construction and Farrow Development Group. John has established Farrow Commercial and Farrow Development Group as leaders in the resort and hospitality industry. For more than 15 years, John Farrow has been helping to bring hospitality properties across the country into compliance with federal and local accessibility laws, through ADA Compliance Surveys, ADA construction remediation, barrier removal and ADA Consultations.

Testing two common ADA myths

There have been more than 15,000 ADA lawsuits filed in the United States. Failure to comply is expensive and bad for business. It is important to be ADA-friendly.

There is abundant law and lore in ADA compliance. Lore is often passed by word of mouth and often attains the status of urban legends or mythology. Not all urban legends are right.

How would you do on evaluating truth from fiction on two of these myths?

Myth #1: "My property was built before the ADA was enacted, and we haven't done anything to it, so we're grandfathered in."

Reality: This is false. Every place of "public accommodation"(every hotel, restaurant, retail and other facility open to the public) is covered by the requirements of the ADA, as recently amended. There are no exceptions. As a business, you have to evaluate if barrier removal is "readily achievable." JMBM and its expert resources can help you make this determination.

Myth #2: "The building inspector reviewed my plans and gave me a permit. Therefore, my property must be in compliance with accessibility laws."

Reality: This is false. Building and safety review does not ensure compliance with accessibility laws, and it offers you no protection from liability.

Latest ADA developments on pool lifts and spa lifts

An area of focus was pool and spa lift requirements - The implementation of this one requirement of the 2010 Regulations was delayed from March 15, 2012 to May 21, 2012 and then (and currently) to January 31, 2013. Once this requirement goes into effect, all public accommodations (including hotels, motels, inns and most timeshares) will be required to install fixed pool lifts at all pools and spas, unless the same is not "readily achievable."

See our more detailed blog article on this topic: ADA compliance and defense lawyer alert: ADA pool lift deadline extended to January 31, 2013

What's new in the 2010 Regulations ALREADY IN EFFECT?

Facilities/Elements - The following facilities and elements are now covered by the 2010 regulations, and all public accommodations must comply with the requirements relating to these facilities and elements to the extent "readily achievable":

Golf courses, including miniature golf courses - this includes golf cart access directly to the tees and greens
Pools and spas - this includes lift, ramp and other requirements (implementation delayed until January 31, 2013)
Play areas and play structures
Boat launches
Amusement parks
Fitness facilities

New Policies & Procedures - these requirements are in effect for all public accommodations (as of March 15, 2012):

Reservation Requirements - With limited exceptions, (1) all public accommodation reservation agents must be able to identify accessible features, (2) accessible rooms must be held back as the last rooms sold (so as to be available for reservation by individuals with disabilities) and (3) accessible rooms, once booked must be hard blocked for the reserving party.
Service Animals - Only dogs and miniature horses (unless, with respect to horses, the party seeking to exclude them can make certain showings) are service animals under the ADA. Public accommodations are not permitted to ask most questions relating to service animals, to charge a pet fee for service animals, or to exclude service animals except under very limited circumstances.
Mobility Devices - Segways are now, along with wheelchairs and a number of other motorized devices, considered power-driven mobility devices, and the burden is on the public accommodation to show why they should not be permitted on the property.
Communication Devices - You are required to provide effective methods of communication and to provide an interpreter for individuals with hearing impairment. There are a host of restrictions against communicating in an impermissible manner, including with the minor children of individuals with disabilities.

IMPORTANT NOTE: If you do not have written ADA and local accessibility policies and procedures for your hotel or timeshare property, then you are taking unnecessary risks.

New Guest Room Requirements for Mobility and Communication Features - these requirements apply to new and altered public accommodations.

What Can You Do to Avoid Liability?

Training - Training is critically important, and it can help prevent expensive litigation. Thought must go into the preparation of an accessible room, and the approach must be different depending on the disability of the individual who has booked the room. JMBM performs site inspection surveys and works with hotel operators to train the staff to address the needs and concerns of individuals with disabilities.

ADA Surveys/Site Inspections - Even if you own or operate a newly constructed property, an ADA Survey will likely reveal areas of non-compliance and rooms for improvement in policies and procedures. By working with a CASp (Certified Access Specialist program) certified consultant, you may enjoy certain protections against liability while you seek to bring your property into compliance.

Website Accessibility - This is an area of focus for the Department of Justice. This area is evolving, but your website must already comply with all current reservation requirements.

Federal (ADA) Compliance is Not Enough

Note that state accessibility requirements are often more comprehensive than the requirements of the ADA. Consult experienced counsel in connection establishing your accessibility policies.

You Need an Expert

JMBM is available to assist with compliance, training and defense. We understand and have experience with accessibility laws and how they apply to the hospitality industry.

Develop a Strategy to Avoid Costly Litigation

In any event: Figure out an effective implementation strategy that will allow you to be proactive. If you get sued, then you didn't do your job. Develop a plan now.

Other ADA defense and compliance resources

You can access the full library of ADA materials on Hotel Law Blog by going to the home page, selecting the tab at the top that says "HOTEL LAW TOPICS", and then clicking on "ADA Defense & Compliance" in the drop down menu . . . 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 hotels. 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 1,300 properties all over the world. For more information, please contact Jim Butler at [email protected] or +1 (310) 201-3526.

Jim Butler is a founding partner of JMBM, and Chairman of its Global Hospitality Group® and Chinese Investment Group™. Jim is one of the top hospitality attorneys in the world. GOOGLE "hotel lawyer" and you will see why.

Jim and his team are more than "just" great hotel lawyers. They are also hospitality consultants and business advisors. 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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