Hotel Law Blog

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
18 May 2012

DOJ extends pool lift deadline

Today, the Department of Justice announced that it is extending the ADA pool lift deadline from May 21, 2012 to January 31, 2013.

Amendment to ADA regulations

This morning, the DOJ formally published an "Amendment of the Americans with Disabilities Act Title II and III Regulations to Extend Compliance Date for Certain Requirements Related to Existing Pools and Spas Provided by State and Local Governments and by Public Accommodations" (ADAAG Sections 242 and 1009 Standards for Accessible Design).

The new pool lift Compliance Date is January 31, 2013. The Amendment acknowledges that the DOJ's January 31, 2012 technical advisory caused "significant concerns and misunderstandings among a substantial number of pool owners and operators" with respect to the new technical requirements pool lift must .

Background to the extension

The DOJ recently received and carefully considered comments from pool owners, operators and various industry groups and clarified a number of popular misconceptions about the new requirements. At the end of the day, the DOJ seems to have heard the public outcry, in part.

In its Technical Advisory Document of January 31, 2012, the DOJ sent tsunami-sized waves through the hospitality and pool and spa industries when it announced, for the first time, its interpretation that pool and spa lifts are required to be "fixed" (as opposed to portable) next to the pool or spa at all times the facility is open, unless it is not "readily achievable," and they cannot be shared between water elements.

Continue reading " ADA compliance and defense lawyer alert: ADA pool lift deadline extended to January 31, 2013 " »

Posted In: ADA Defense and Compliance

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
9 May 2012

Along with Mike Cahill of Hospitality Real Estate Counselors (HREC) and Sean Hennessey of the Lodging Investment Advisors, I am privileged to be one of the co-chairs of the Lodging Industry Investment Council (LIIC). LIIC is the hotel industry "think tank" whose membership owns or operates many billions of hotel investments, and involves all aspects of the industry.

LIIC Annual Survey

I am grateful that Mike Cahill takes responsibility for analyzing LIIC's annual survey of lodging investment trends and challenges, a highly regarded profile of investment sentiment and attitudes for the lodging industry for the next 12 months.

This survey results in the annual "LIIC Top Ten", which Mike delivered to more than 350 participants at the 22nd annual conference of Meet the Money® today.

Economy is top concern

You won't be surprised that the economy remains the biggest concern among LIIC's members. But some of their beliefs about where things are headed are less obvious and very interesting.

If you were not in attendance, you missed Mike's personal insight. But the presentation is available on HotelLawyer.com. It is brief and straightforward, as was his delivery today. For a snapshot of what industry leaders are thinking about right now, click here.

Continue reading " Hotel Lawyer from Meet the Money® -- Lodging Industry Investment Council (LIIC) announces its top 10 challenges for hotel industry in 2012 " »

Posted In: Meet the Money® , Outlook and Trends

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
9 May 2012

Hotel Lawyers in Los Angeles at JMBM's Meet the Money® 2012

The hotel lawyers at JMBM'S Global Hospitality Group® were out in force and mingling with about 350 hotel industry leaders that joined us in Los Angeles this week for the 22nd annual Meet the Money® 2012 conference.

What is different about Meet the Money®?

There is a lot to like about this conference. We are not in the conference business, and we don't make a profit on this event, so we run the conference at the highest level of excellence and the way we think best suits business-oriented deal makers. For instance:

• Substantively, everything has a strong focus on financing, value, and liquidity.
• It is an efficient (one level) venue where you can see everybody and is not too crowded.
• You see deal makers, not product electronic key or astro turf vendors.
• It is a comfortable venue with great food (breakfast, lunch and receptions) and constant snacks (fruit, yogurt, juice, soft drinks, energy bars, and the like).
• The program starts and ends on time.

What's different this year from last year?

Well, last year, hotel transactions were coming back online and there was plenty of excitement.

This year, although it seems like just about everyone has a recent deal to discuss and more in the pipeline, things are more sluggish. The experts look for the second half of the year to be much stronger, making a mirror image of 2011.

As usual, there was lots of conversation and plenty of business cards being exchanged in the hallways, and there was a large crowd at the Grand Welcome Reception that talked for hours into the evening (the great food and the poolside venue may have been a factor!).

Quick take aways

If our participants are any indicator of what's going on in the hotel marketplace, there is a reason for optimism. Here are some of the common conversational and conference themes:

Continue reading " Meet the Money® conference talks about Hotel loans and equity investment, creating value with hotel value-add and repositioning, hotel opportunistic investment, deal making and much more " »

Posted In: Meet the Money®

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
07 May 2012

Hotel Lawyer ADA defense alert: Charles Schwab settles claim over website accessibility under the Americans with Disabilities Act

On May 2, 2012, Charles Schwab & Co. announced an initiative to make its website more accessible for all customers, particularly those who are blind or have sight disabilities. This high-profile development was part of the settlement of a claim by Kit Lau, a Charles Schwab customer for more than 25 years.

While many have focused on the Americans with Disabilities Act's (ADA's) ever-changing pool lift requirements, we continue to see the DOJ and private advocacy groups driving to enforce the original regulations promulgated 20 years ago under the ADA. As of December 31, 2011, more than 13,130 lawsuites had been filed under the ADA, and the trend continues to grow.

Here is what Marty Orlick, the head of our ADA compliance and defense group, and I think the Schwab matter may mean to you.

Charles Schwab settlement is one of 15 prominent web site settlements

Charles Schwab, one of the nation's leading securities broker-dealers, and a disability rights advocacy attorney, announced last week that they settled a year-long claim by a blind customer that its website was inaccessible to blind, low vision and cognitively challenged customers. The structured negotiations concluded this dispute short of trial.

With this settlement, Charles Schwab joins a list of 15 prominent companies which have settled website accessibility complaints. Charles Schwab agreed that it will make its website more accessible and inclusive for all customers, and agreed to implement the Web Content Accessibility Guidelines (WCAG) Version 2.0 Level AA which will make its website navigable by disabled customers.

An informal complaint backed by the threat of litigation and administrative investigations was lodged with Charles Schwab by the lawyer for a blind day trader. The claimant was a long-time Schwab customer and herself a computer programmer. One morning, she found that she could no longer navigate the Schwab website using JAWS software and was prevented from making trades on-line. The JAWs software reads aloud the text of the page so blind and low vision customers can access the website.

Continue reading " ADA compliance and defense lawyer alert: Charles Schwab settles claim over website accessibility " »

Posted In: ADA Defense and Compliance

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
04 May 2012

EB-5 LAWYER ALERT: California has adopted a new TEA policy as of April 30, 2012. It will severely affect California's ability to compete for
EB-5 financing.

My partners, Catherine Holmes and Victor Shum, have alerted us to an important new development that will affect new development projects in California.

The State of California has decided that it will not certify any new "targeted employment areas" or TEAs under the EB-5 immigrant investor visa program.

If you develop hotels and other real estate, you are well aware of the financing opportunities provided by the EB-5 immigrant investor visa program -- and you are also know the importance of locating your project in a TEA. (If you are new to the intricacies of EB-5 financing, check out our articles on the topic on the Hotel Law Blog.)

The purpose of the EB-5 financing program is to create new jobs for Americans using investment from foreign investors who want to get a green card. Hotel developers, who have been unable to develop projects for years because of lack of traditional financing, are successfully using for new projects.

Our hotel lawyers have advised clients on more than 40 EB-5 projects, and we know this program is working. There are cities and counties throughout the U.S. -- including California -- that want these projects and the jobs that come with them.

For the full story, read the article below. We hope you will be moved to contact your city and state representatives and let them know that restricting TEA designations will restrict economic growth! This action is contrary to what virtually every other state in the Union is doing. Some of the biggest states have gone to great lengths to facilitate TEA designation both with speedy processing (it normally takes only 24-48 hours to get designation) and by flexibility in finding ways to meet the requirements. Why would California turn away this "free capital" from foreign investors to create jobs for Americans? Something is wrong.

Continue reading " EB-5 ALERT: California's new TEA approach will discourage EB-5 investment in California " »

Posted In: EB-5 Financing

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
01 May 2012

Hotel Lawyer in Los Angeles at Meet the Money® 2012

My staff and I are making final preparations for the 22nd Annual Meet the Money® conference and I couldn't be more excited! This year's theme is "Rise above the global financial tempest" and our speakers are ready to share the experience, knowledge and insight that enables them to find financing, create value and get deals done in the midst of our current global challenges.

Continue reading " Join us at Meet the Money® in Los Angeles May 7-9, 2012. Get the latest on debt and equity financing and what's up in the hotel industry. " »

Posted In: Meet the Money®

The NLJ's Midsize Hot List

The National Law Journal (NLJ) published its Midsize Hot List this week, and we are pleased that Jeffer Mangels Butler & Mitchell LLP was included as one of only 20 firms selected.

How the selection process works

In its national survey, the NLJ judged firms by how they stood out from their competition, what made them distinct in terms of organization and operations, and by the key matters the firm handled for clients in 2011. As part of that process, the NLJ's researchers contact the firm's clients for their input.

According to the National Law Journal, the 20 law firms that comprise its 2012 Midsize Hot List "are good at what they do, but they're also good at how they do it".

Known globally for hospitality

In its profile of Jeffer Mangels Butler & Mitchell LLP (JMBM), the National Law Journal noted that the firm has many successful practices in industry niches, being best known globally for its Global Hospitality Group®. Particular note was also made of the related activities of our Chinese Investment Group® in both EB-5 and inbound investment from China.

At JMBM, we believe that clients benefit from industry specialization. When a lawyer has deep experience in an area, you are almost certain to get a better outcome. Not only that, you will get it faster, cheaper, and with less risk. I have always reminded our clients -- hotel owners, developers and capital providers -- that hotels are NOT just real estate. Hotels are complex operating businesses, integrally intertwined with special-purpose real estate. So when you have an important hotel matter, why would you go to a just a real estate lawyer? You need a hotel lawyer!

What our clients think

It's always nice to be recognized for one's work but, for me, it was most gratifying to read the comments made during the reference checking by Warren Ernst, senior city attorney for the city of Dallas, for which our hotel lawyers conducted a request for proposal -- using JMBM's HMA Pro™ approach -- for hotel brands to manage its large convention center hotel. (We assisted in the selection process and then negotiated a "qualified hotel management agreement" meeting the requirements of the Internal Revenue Code for a project financed with tax-exempt bonds.) Here's what he told the National Law Journal:

Warren Ernst, a senior executive assistant city attorney for Dallas, said that Jeffer Mangels "made a very complex component of the project go efficiently, while assuring the city's leaders and managers that the city's interests were being very well protected. JMBM was critical in providing both legal and practical business advice throughout the process. "

Our goal has always been to be more than "just" excellent hotel lawyers, but to also bring business advice -- both practical and strategic -- to each of our client's projects. For sophisticated clients who don't have expertise in hospitality, like Warren's team at the city of Dallas, our team provides hotel-specific knowledge about what is "market" or "customary." We can help them understand what's a fair deal and how to get it. Applying creative and unusual approaches, like our HMA Pro™ approach to finding a great hotel operator, we can add value and help to solve sticky problems.

Continue reading " JMBM is one of 20 hottest law firms in the U.S. per the NLJ's latest list " »

Posted In:

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
23 April 2012

Hotel Lawyer with some insights on the recent California Supreme Court Case, Brinker v. Superior Court

Last week, the California Supreme Court gave employers a "break" by resolving issues in a case that has been pending since 2008 -- issues that have cost California employers more than a billion dollars in settling and defending class action lawsuits.

At issue in Brinker Restaurant Corporation v. Superior Court was whether California employers must ensure that their employees actually take their meal and rest periods or merely make them available. To the collective relief of California employers, the court found that an employer must only provide meal and rest periods to its employees, leaving the employees free to use the period for whatever purpose they desire. The employer is not obligated to ensure no work is performed during the period.

My partner, labor and employment lawyer Travis Gemoets, offers some practical pointers to employers based on the Brinker decision, in his article below.

While it is always great to share positive news with our friends in the hospitality industry, the Brinker decision also reminds us of the critical need for clear, sound employee policies, and the importance of providing regular, ongoing education to supervisors who implement those policies.

JMBM's Global Hospitality Group® includes labor and employment lawyers with deep experience in the hospitality industry, providing clients with practical advice and planning, as well as aggressive advocacy. If you would like to discuss how our industry-specific prevention and preparedness strategies can help you avoid or minimize costly employment claims, or how the Brinker decision impacts your hotel operation, please contact me or my partner, Travis Gemoets.

Continue reading " Hotel Labor Lawyer: California Supreme Court finally gives employers some good news in Brinker Restaurant Corporation v. Superior Court " »

Posted In: Labor & Employment

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
28 March 2012

EB-5 financing is one of the few serious financing options available to hotel developers

EB-5 financing has become an important source of financing for hotel development in the past few years. And hotels have become a favored class of investment for foreign investors seeking to get their green card with the required investment of capital. Quite a few projects are being funded in this way, and some of the big hotel companies - but most notably Marriott - are encouraging their developers to look into EB-5.

The hotel lawyers at JMBM's Global Hospitality Group® have worked on (or are now working on) more than 40 such EB-5 hotel financing projects. We still seem to be at the early part of this wave, investor interest continues strong, and more people are getting on board. In addition, the construction and development financing part of hotel financing spectrum continues to be the most difficult to arrange, so EB-5 financing looks pretty attractive.

It also looks like these EB-5 deals are accomplishing their intended purpose well. They attract wealthy foreign investors, who bring fresh capital into the United States to invest it in building hotels and creating at least 10 jobs for Americans for each investor.

A new wrinkle being created by the USCIS

But a new wrinkle has recently been created by the U.S. government agency charged with monitoring the EB-5 process, the U.S. Citizenship and Immigration Services ("USCIS"). The USCIS is starting to question under what circumstances hotel jobs created by a new hotel development should be counted for purposes of EB-5 financing - - at least when the hotel operator hires the new employees under the industry-standard form of hotel management agreement. In so doing, it appears that the USCIS may be wondering if jobs with the hotel operator should be treated the same as jobs with tenants under an office or retail lease.

The article below from my colleagues, Catherine Holmes and Victor Shum, explains the latest issue and why hotel employees should be treated as employees of a hotel project, regardless of whether they are employed by the hotel owner or a hotel manager. We think this analysis will be of greatest interest to our friends in the EB-5 community who may not be familiar with the hotel industry.

Continue reading " EB-5 Lawyer with the latest wrinkle in EB-5 financing for hotels -- the Tenant Occupancy Issue " »

Posted In: EB-5 Financing

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
27 March 2012

Hotel Lawyer ADA defense alert

Significant legislation has been introduced with AH&LA support to provide relief for ADA compliance on pool lifts. So my ADA expert partner, Marty Orlick, and I thought it might be helpful to explain what is going on, and what it likely means to you. Here is what is happening . . .

One year delay for ADA pool lift requirement

On March 26, 2012, the AH&LA announced support for legislation introduced to force a 1 year delay in enforcing the ADA pool lift requirement. The bill was introduced by Congressman Mick Mulvaney (R-SC) and has 26 original co-sponsors.

Authorize portable pool lifts, sharing lifts and protection for hoteliers during delay

In addition to delaying effectiveness of the pool lift requirement that was originally scheduled to be effective March 15, 2012 and then delayed 90 days until May 15, 2012, the proposed legislation would give some other much-sought-after relief.

It would allow the use of portable pool lifts, and allow sharing of lifts among pools. Both of these alternatives were belatedly prohibited by the Department of Justice's January 31, 2012 interpretation of its final rules, and would be overturned by the legislation if adopted.

Significant relief for the hotel industry

According to AH&LA President/CEO Joe McInerney. "Portable lifts will allow hoteliers to protect guest safety, while accommodating guests with disabilities. The delay will allow hoteliers the time to implement the necessary changes without the fear of lawsuits."

Continue reading " ADA Defense Lawyer: AH&LA supported legislation would give 1 year delay for pool lift requirements " »

Posted In: ADA Defense and Compliance