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ADA defense lawyer: Implications of the latest ADA enforcement “sweeps” against hotels in Portland and San Francisco.

Hotel Lawyers | Authors of www.HotelLawBlog.com
30 June 2010

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Hotel ADA defense lawyer looking beyond the latest update on ADA “sweeps” by the Department of Justice coming to Portland, San Francisco and elsewhere.

As we wrote earlier, the U.S. Department of Justice (DOJ) is continuing its program of 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 target all hotels in a given geographic area. There is also some basis to believe that the sweeps may now also focus on certain industries such as hotels, restaurants and other places of public accommodation.

There is a lot of valuable information on Hotel Law Blog about ADA Defense matters. Just go to the top of the Blog home page, click the “Hotel Law Topics” tab, and then select the first item named “ADA Defense.” You will see all the articles on this subject organized in reverse chronological order.

Although the sweeps sound an immediate call to action in the targeted areas and industries, there are broader implications that we will talk about today.



ADA enforcement “sweeps” are
just the tip of the iceberg

We think that the DOJ’s latest hotel investigations are a wakeup call to entire lodging industry. They are an important and compelling warning that every hotel and restaurant owner should promptly commence a comprehensive ADA compliance review…

As discussed in the last article, the new ADA sweeps by the DOJ are just the tip of the iceberg for lodging professionals on accessibility compliance matters. So in this article I will continue the interview of two of the senior members of JMBM’s Global Hospitality Group® who lead our ADA defense practice for owners and operators.

Yesterday, we interviewed my partner Marty Orlick. Marty 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 as well as claims filed by private ADA litigants.

Today, we will talk with Jim Abrams, another senior member of our Global Hospitality Group®. Jim recently retired as the President & CEO of the California Hotel & Lodging Association, and he has advised hundreds of lodging operators about, and written and lectured extensively on, all aspects of accessibility laws that apply to the hospitality industry.

<u?What other accessibility-related issues should hotel owners and operators address?

One of the best resources for hospitality issues on any subject – including ADA or accessibility – has to be the Hotel Law Blog at www.HotelLawBlog.com.

Jim Butler: Are hotels that receive DOJ questionnaires the only ones that need to be concerned about the accessibility issues covered in the surveys? What about other hotels and other accessibility problems?

Jim Abrams: We think that the DOJ’s latest hotel investigations are a wakeup call to entire lodging industry. They are an important and compelling warning that every hotel and restaurant owner should promptly commence a comprehensive ADA compliance review of its property and its operations. Owners and operators are clearly being targeted by both Federal and State government agencies (like the DOJ) and by private litigants.

It is so much cheaper to be proactive. Delay risks serious legal consequences and great expense. ADA compliance is required by law. And while complying with the law, there is also a great opportunity to market the hotel’s accessibility features for more “heads in beds.”

…accessibility laws require that web sites be accessible…yet a recent survey of the web sites of 50 major hotel companies and 50 major restaurant companies revealed that virtually none of them were accessible…

Jim Butler: What are the major issues that a hotel should focus on in such a compliance review?

Jim Abrams: While there are a number of areas, I recommend an initial look at three major categories of issues:

  1. Remove architectural and communications barriers — as required by the ADA and state/local building codes. Even if you have brand new construction, unless it was directed or inspected by an experienced ADA compliance expert, you are almost certain to accessibility issues. And remember that state/local building codes frequently have more extensive and stringent requirements than the ADA.
  2. All new construction — whether new ground up buildings, rehabs or alterations – should be designed and double checked by professionals who are experts about what the accessibility standards actually require. I can’t tell you the number of new hotels that have been built, and the multi-million-dollar renovations of existing hotels that have been completed, with major ADA violations. In my experience, even the best design professionals typically have an inadequate knowledge of all of the accessibility standards. And local building official approvals provide no protection against accessibility violations.You must assume that your design professionals and building officials don’t know as much as they should about accessibility requirements and cover yourself by seeking out accessibility experts to provide oversight. Your hotel will be liable for their mistakes.
  3. Your hotel’s policies and procedures — As my colleague Marty Orlick and I have said many times, accessibility is as much about policies and procedures as it is about construction. Hotels also have to provide “auxiliary aids and services,” such as assisted listening devices whenever a public address system is provided and large-print documents. Hotels may also need to provide accessible transportation.

As we have more fully explained in the “ADA Defense” section of Hotel Law Blog (see “Hotel Law Topics” tab at the top of the Blog home page and then click “ADA Defense”), there are many critical areas for policies and procedures. Three of the most common issues are:

It does not matter how new your construction is unless it was inspected by an experienced ADA compliance expert.

Jim Butler: So the bottom line is that ADA and accessibility compliance are now an urgent “must-do” item for every hotel and restaurant?

Jim Abrams: Yes, accessibility compliance is now part of the “triage” for hotels. But more importantly, I really believe that the hotel industry is missing an incredible opportunity. The disabled community represents a large, growing, and financially significant, segment of the traveling population. When I ask lodging operators what they have in their annual marketing plans to go after that important business niche, the answer is always “nothing.” There are a great many simple and cost-effective ways to reach this market, and all hoteliers should do so. Your outreach to this market segment can also be an important policy for ADA compliance.

Jim Butler: What else is happening on the constantly-changing ADA front of ADA compliance that hotel owners and operators should know about?

Jim Abrams: First of all, the U.S. Department of Justice is in the process of taking action to formally adopt an entirely new set of accessibility building standards, as well as to amend its regulations in very substantial ways that will impact virtually every lodging establishment. For example, the new standards will require that most recreation facilities be accessible, and this will be a whole different area of compliance for hotels. I advise clients that they should review the pending new standards so that they can incorporate them as appropriate in all new construction and in alterations of existing hotels. For example, the allowable maximum “reach range” in the current ADA standards is 54 inches, but that will be lowered to 48 inches in the new regulations; hence, new construction and alterations should incorporate the lower reach range to avoid the possible need to retrofit after the new standards become effective.

I can’t tell you the number of new hotels that have been built, and the multi-million-dollar renovations of existing hotels that have been completed, with major ADA violations.

And although we have referred to this earlier in the major accessibility areas that hotels must address, web sites are a hot area in accessibility. Simply put, accessibility laws require that web sites be accessible to individuals with various types of disabilities, such as sight impairment, hearing impairment, mobility impairment, and developmental and cognitive disabilities. And yet a recent survey of the web sites of 50 major hotel companies and 50 major restaurant companies revealed that virtually none of them were accessible.

The same goes for many other forms of “Internet presence,” such as social media mechanisms. This means that those operators are not only violating the ADA and other laws, they are also failing to communicate their marketing messages to a large market segment.

Jim Butler: What resources do you recommend for any hotel or restaurant owner concerned about ADA or accessibility issues?

Jim Abrams: Great question! One of the best resources for hospitality issues on any subject – including ADA or accessibility – has to be the Hotel Law Blog at www.HotelLawBlog.com.

Then, coming soon will be another great resource. In fact I am co-author of an AH&LA “how to” manual about how hotels and other businesses can make sure that their web sites and “online presence” activities are accessible. Every business owner or operator should get a copy as soon as it is available–it will be available free to AH&LA members. It is called “Lodging Industry Primer for Creating an Accessible Web Presence.”

And finally, Marty Orlick and I are always available for a complimentary initial consultation to see if we can help anyone.

Jim Butler: And a free initial consultation with two of the most experienced ADA experts in the country has to be the best deal around! Contact me at jbutler@jmbm.com or 310-201-3526 and I will connect you immediately.

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MO.jpgMartin H. Orlick is one of the top ADA defense lawyers in the country, having helped clients with more than 300 ADA cases for hotels and other businesses. He is 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 Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.

Abrams%20Jim%20resized%20for%20web.jpgJim Abrams is a senior member of the JMBM Global Hospitality Group® and the former President and CEO of the California Hotel & Lodging Association. Jim has advised hundreds of lodging operators about, and written and lectured extensively on, all aspects of accessibility laws that apply to the hospitality industry. For more information, contact Jim at 415.398.8080 or jabrams@jmbm.com.

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 troubled hotel transactions. Who’s your hotel lawyer?

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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 jbutler@jmbm.com 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”.)

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.