By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
20 January 2013
Hotel Lawyer with some practical advice on what do when the Department of Justice knocks on your door with an ADA “survey”
Actually, the DOJ normally mails you the ADA survey form. But it does come down to the same thing.
By the time you get a DOJ survey, a lot of your flexibility is gone, but it is not too late to protect yourself if you seek experienced counsel immediately.
We are already seeing an increase in public and private enforcement of the ADA. While many are being distracted by pool lifts and other new ADA requirements, private advocacy groups and the DOJ keep banging away on the basics.
Examples? One day this past week, a single ADA plaintiff’s lawyer filed 19 lawsuits in the Los Angeles federal court (Central District of California). And, here is the latest on what is going on with the DOJ enforcement action in New York City with the top-rated Zagat restaurants.
DOJ sues 3 of NYC’s top Zagat rated restaurants
for ADA violations
Will your city and restaurant be next?
Martin H. Orlick | Hotel Lawyer
You have worked all your life to get top Zagat ratings for your restaurant. After years of hard work, you’ve made it! And because of that, food lovers from around the world will beat a path to your door.
But, so too will the Department of Justice (DOJ), as the owners and operators of Manhattan’s top 50 Zagat-rated restaurants found out in September of 2011.
That is when each restaurant received a 17-page survey form, courtesy of the Civil Rights Unit of the U.S. Attorney’s Office, Southern District of New York (SDNY), for the purpose of determining compliance of their establishments with the accessibility requirements of the Americans with Disabilities Act or ADA.
Then, in October 2012, the DOJ filed a lawsuit against the owners and operators of 3 of those restaurants. All of the named defendants are part of the Rosa Mexicano restaurant chain. The lawsuit alleges numerous violations of the Americans with Disabilities Act of 1990 (ADA).
Here’s what happened and how the Rosa Mexicano chain could have avoided the lawsuit.
Background: ADA and Manhattan Restaurants ADA Compliance Initiative
Under the ADA, all facilities in the United States that are “public accommodations”, including hotel, restaurants, and retail must comply with state and federal standards that make their establishments accessible to and usable by customers with disabilities. Many mistakenly think that the ADA is a set of federal building code standards. It is not! It is the most sweeping civil rights protection for disabled Americans. Sure, there are state building codes and federal guidelines involved, but the ADA assures disabled Americans of full and equal access to public accommodations.
The DOJ has primary jurisdiction to enforce the ADA, but since there is no federal “building department”, the DOJ has mostly left enforcement of the ADA to local building departments and private lawsuits.
However, in New York, the U.S. Attorneys Office SDNY has committed resources for achieving industry-wide impacts for ADA compliance in Manhattan. The recent sweep of the 50 most popular Zagat-rated restaurants in Manhattan is termed the Manhattan Restaurants ADA Compliance Initiative. It is not the first such ADA initiative that the DOJ has focused on “public accommodations” in Manhattan.
DOJ “sweep” of 60 Times Square hotels
In 2005, the “Manhattan ADA Hotels Initiative” focused on the accessibility of 60 hotels in Manhattan’s Time Square Theater District. While most hotels, including our client’s property, cooperated with the initiative, completing the surveys and entering into Voluntary Compliance Agreements to bring their properties into compliance, 5 did not. Those 5 were eventually sued by the U.S. Attorneys Office SDNY. In the end, they agreed to substantially the same terms as the hotels that complied voluntarily — but they suffered civil penalties and expensive litigation, as well.
If the owner and operator of the Rosa Mexicano restaurants had done their homework, and received proper counsel, they could have saved money, and avoided the lawsuit, not to mention the negative publicity that ensued.
We believe that the DOJ sweeps are just beginning, and preparation is the key. See ADA Sweeps by U.S. Department of Justice — Coming to a theater district or Hotel near you soon? How to get ready before it’s too late.
The Survey required for the top 50 Zagat restaurants
Titled the “Manhattan Restaurants ADA Compliance Review Survey Form,” the questionnaire was developed to ascertain whether restaurants meet the basic requirements of the ADA, including the architectural standards set forth in the Americans with Disabilities Act Accessibility Guidelines (ADAAG). To that end, the survey questionnaire asked for detailed information about the physical aspects of the restaurant such as dining areas, entrances, waiting areas, bars and restrooms. The survey response is the most critical documents in the investigative process and should only be completed with the aid of ADA legal experts.
For more on the critical importance of the DOJ surveys, see Is the DOJ’s ADA Compliance Survey Coming to Your City Soon? What to do when you receive the DOJ’s ADA Compliance Review questionnaire.
The ADA requirements go far beyond the physical aspects of the premises. The survey form covers these aspects of restaurant operations as well, including reservations systems, Telecommunications Relay Service and website accessibility, written accessibility policies, practices, procedures, and service animal policies. The DOJ is also particularly interested in receiving your written ADA policies, practices and procedures manual.
The form also asks owners and operators what they intend to do in the next 6 months to address ADA policies and procedures, and what they intend to do in the next 3 years to remove architectural barriers that prevent accessibility.
The DOJ likely made sub-rosa investigative site inspections to verify the accuracy of the information reported in the survey forms, as they did with hotels in the Times Square hotel ADA survey.
Voluntary Compliance Agreements
Most restaurants – as most of the hotels before them – have entered into Voluntary Compliance Agreements with the DOJ, detailing the changes they will make in their properties and operations to become ADA compliant.
The survey form may seem innocuous, but it is a prosecutorial trap for the unwary. Both the survey form and the compliance agreement are detailed legal forms. Scuttlebutt says that many restaurants did not bother to retain legal counsel to help them reply to survey and to fully understand the consequences of each response. This will likely prove a costly mistake.
Any time you get a DOJ survey for ADA compliance, you would be wise to take the survey and the compliance agreements very seriously. Experienced ADA counsel are recommended through all phases of a DOJ survey and investigation.
How we can help
We have assisted more than 500 clients — including restaurants, hotels, banks, building owners and retail operators — in complying with the ADA and in defending them in ADA lawsuits. We have represented clients in a number of the DOJ’s ADA investigations – including the Manhattan hotel survey — helping them to avoid the kind of lawsuit faced by the Rosa Mexicano chain. Click here to see more on how we assist clients with ADA matters.
It is important to keep in mind that owners of buildings, as well as the restaurant owners and operators of public accommodations are both responsible for ADA compliance, even if the building owner merely leases the space to a restaurant operator.
Owners and operators of all public accommodations need to address accessibility issues for their customers and need to get help to understand the full breadth of compliance requirements under the ADA. ADA compliance is the law, a lesson the DOJ is driving home!
Owners and operators should also remember that disabled customers represent a sizable number of patrons and tourists – and bringing establishments into compliance with the ADA is good for business. It is also the right thing to do!
Manhattan restaurants not included in the survey should take heed and come into compliance, before they are investigated or sued. The U.S. Attorney SDNY has a web page asking disabled citizens to let them know of any public accommodations that are not accessible.
Will the United States Attorney’s Office in New York and other cities like Chicago, San Francisco, or Los Angeles, announce additional lawsuits against Zagat top rated restaurants? The answer to this question remains to be seen.
Restaurants in other parts of the nation are not immune to lawsuits filed by local U.S. Attorneys advocacy groups private litigators, or the DOJ. The ADA is an area where an ounce of prevention is worth for more than a pound of cure.
Martin Orlick is a partner in JMBM’s Real Estate Department, the Chair of the Firm’s ADA Compliance and Defense Group, and a senior member of JMBM’s Global Hospitality Group®. Marty has significant experience in representing hospitality industry clients in enterprise wide ADA compliance and defense. He has represented more than 500 businesses in ADA issues, many of them hotels and restaurants, as well as hotel mixed-use properties. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance including facilities, website and operational compliance. He recently performed an ADA survey of a portfolio of Manhattan hotels. Marty is a member of the American College of Real Estate Lawyers (ACREL) and a frequent speaker on the ADA and other topics. For more information, please contact Marty Orlick at 415.984.9667 or firstname.lastname@example.org.
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?
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