Hotel Law Blog

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

Hotel ADA defense and compliance lawyer: ADA litigation over website accessibility is poised to explode.

How many lawsuits or claims have been filed by private plaintiffs and the Department of Justice (DOJ) against property owners under the Americans with Disabilities Act or ADA?

The latest figures show that more than 15,500 such ADA lawsuits or claims have been filed. And the pace is about to pick up in a big way.

My partner Marty Orlick, who heads JMBM's ADA compliance and defense team, has defended more than 500 ADA claims all over the country. Marty warns that we may be about to see a tidal wave of Cyber Accessibility claims -- lawsuits about reservation systems, hotel websites and related communications facilities.

Why could there be a big slug of these ADA lawsuits over websites? Marty says that there are several reasons:

1. First, these lawsuits will be very easy for plaintiffs to work up. The plaintiffs do not need any site inspection, experts or research. They can just surf the web from the convenience of their homes or offices. Marty says the "surf by" complaints could dwarf the "drive by" ADA lawsuits that looked for missing accessible parking spaces and other readily visible shortcomings.
2. Second, some owners and operators have not been paying enough attention to this issue. They have had their attention elsewhere, such as on operating fundamentals, labor costs and ADA pool lift requirements.
3. Both the DOJ and private plaintiffs have had tremendous success with website accessibility lawsuits under the ADA (see the discussion below and related articles about the Hilton International consent decree and the Charles Schwab class action case), and they are growing impatient for compliance.
4. In addition, a lack of clear industry standards and misinformed marketing staff have lulled some into thinking they are already in compliance when that is not so.
5. Finally, some owners and operators have not recognized ADA compliance for the high priority it demands. They have not appreciated how costly ADA litigation and defense can be, and how compliance is so much cheaper than defense.

So here are some timely tips from Marty Orlick, a pro who really understands the ADA compliance and defense. . .

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

Hotel lawyer with latest insights from ADA experts on "ADA Compliance & Claims Prevention."

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

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.

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 - dsudeck@jmbm.com (David Sudeck) or morlick@jmbm.com (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 . . .

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Posted In: ADA Defense and Compliance

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

HotelLawyer.com launches
Portal to knowledge for the hospitality industry

JMBM's Global Hospitality Group® hotel lawyers launch comprehensive hospitality resource

LOS ANGELES -- May 29, 2012. Jim Butler, Chairman of the Global Hospitality Group® at Jeffer Mangels Butler & Mitchell LLP (JMBM) announced today that the Group has officially launched HotelLawyer.com, a comprehensive resource for the hospitality industry.

"JMBM's Global Hospitality Group® is known for providing useful information, thoughtful analysis and a refreshing perspective to legal and business issues that affect the industry," said Butler. "Our rich library of industry information is now organized in one convenient place -- at HotelLawyer.com."

On HotelLawyer.com, readers will find nearly 500 articles published over the years on the Hotel Law Blog, and the first two books in the We Wrote the Book™ series (The Lenders Handbook for Troubled Hotels and The HMA Handbook: Hotel Management Agreements for Owners, Developers, Investors and Lenders). These FREE resources continue to be accessed by thousands of readers each month.

Also available without cost at HotelLawyer.com are presentations from industry leaders, such as those given at JMBM's 2012 Meet the Money® conference by Suzanne Mellen of HVS, Bruce Baltin of PKF Consulting, Greg Hartmann of Jones Lang LaSalle Hotels and Alan Reay of Atlas Hospitality Group.

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Posted In: Ask the Hotel Lawyer™ , Data Technology, Privacy & Security , Outlook and Trends

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

Update on California's EB-5 policy regarding designation of Targeted Employment Areas or TEAs.

California adopted a new TEA policy as of April 30, 2012 which my partners Catherine Holmes and Victor Shum wrote about a few days after publication. (See: EB-5 ALERT: California's new TEA approach will discourage EB-5 investment in California.)

Last Friday, Catherine and Victor met with the California Governor's office to discuss concerns they have raised along with those of the EB-5 community. They appreciated the seeming responsiveness of the Governor's office and the meeting bodes well for the outcome. Ultimately, the test of the Governor's office will be in the approach that California takes on designating TEAs, but here is an update on what transpired.

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Posted In: EB-5 Financing

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

At JMBM's recent hotel finance conference in Los Angeles, a panel of experts talked about how well joint ventures are working to provide financing for hotel development and acquisitions.

The hotel joint venture experts

The Joint Venture Panel from Meet the Money® 2012 featured 5 veteran hotel investors and operating partners, and was moderated by Guy Maisnik, hotel lawyer and Vice Chair of JMBM's Global Hospitality Group®. The panelists were:

Guy Maisnik, Vice Chair, JMBM's Global Hospitality Group® works extensively on hotel joint ventures and financings, as well as acquisitions.

• Mark Burden, CEO, Rim Hospitality
• Lamont Meek, SVP and COO, Circa Capital
• Rick Frank, SVP Hospitality, Behringer Harvard
• Jonathan Martin, VP, AEW Capital Management
• Kam Babaoff, Managing Director, Ensemble Hotel Partners

Each of these participants has a long history of investing in and operating hotels, and they represent the spectrum of views currently prevailing in the industry. While each has been successful, each has taken a different road to achieve success. The individual strategies and approaches of each stands out, as does the talent and vision necessary to navigate some of the toughest years in the hotel industry.

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Posted In: Buying and Selling a Hotel , Hotel Development , Hotel Finance − Hotel Debt & Hotel Equity , Meet the Money®

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 for pool lifts.

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.

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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.

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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:

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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 lawsuits 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.

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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.

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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.

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Posted In: Meet the Money®