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Hotel Lawyer: How hotel swimming pools may spawn ADA lawsuits and what to do about it.

Author of www.HotelLawBlog.com
14 May 2007
Hotel Lawyer on recognizing, avoiding and defending ADA lawsuits. In case you haven’t noticed, ADA lawsuits — suits filed under the Americans with Disabilities Act — are on the rise. We have covered a number of troublesome ADA claim areas here on www.HotelLawBlog.com in the past [Just go the the blog and scroll down the right hand side until you see the easy-to-use tools to sort blog entries by topic. ADA is the first topic]. But today, I would like to introduce Marty Orlick, one of my hotel lawyer partners who specializes in defending ADA cases. In fact, Marty Orlick has represented property owners in defending more than 200 ADA cases! So let’s get Marty’s street savvy advice on how to recognize the threat and then to avoid the potential lawsuits lurking at bottom of your pool.


Marty, this sounds like a very specialized and narrow category of claim. Can you give the readers of www.HotelLawBlog.com some idea of how significant the ADA claim threat is in this area?

Last year, I would estimate that there were 50-100 ADA lawsuits in California alone, involving pools for hotels, health clubs and spas. I personally handled 5 ADA lawsuits involving hotel pools in 2006.

What are a few high-risk states for ADA pool-related lawsuits?

California, California, California. After that, Florida, New York, Colorado.

Why is this a growing problem?

Disabled Americans are traveling at record levels and staying at hotels in increasing numbers. Hotels are required to be accessible. Unless hotels are accessible, disabled guests may not be able to take showers, access restrooms, restaurants, fitness centers, or use other facilities. Disability rights activists have targeted hotels and are filing lawsuits against hotels that provide pools and spas to their guests, but do not have pool lifts, claiming discrimination under the ADA.

Is there case-law that created a precedent for ADA pool lawsuits at the state level?

There is no case law in California. And I am not aware of case law in other states specifically on the subject of pool lifts. The current ADA Accessibility Guidelines (ADAAG) do not require pool lifts in swimming pools or spas. Specifically, the Department of Justice (DOJ) Technical Assistance Manual, II-5.3000 Application of ADAAG, Illustration I, states, “ADAAG does not contain technical standards for access to the pool itself. Thus, the owner cannot be found in violation of ADAAG for failure to install a lift of other means of access into the pool.”

In fact, in a recent case I handled for a national hotel company, the agreement reached with the Department of Justice (DOJ) underscored that the hotel was required to provide access to the pool and around the pool, but not into it.

What ADAAG requires is access to the pool, not entry into it. Access would include a clear path of travel to the pool area, an accessible gate, and an accessible path around the pool itself.

Plaintiffs groups for the disabled argue that inns, hotels and motels are defined as “public accommodations” under the ADA, and under Title III of the ADA, no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the services, facilities, or privileges of a place of accommodation. They argue that the use of the pools at the facilities is one such service or privilege. They might argue that because they pay the same room rate as other guests, they should have access to the same facilities. They will also argue that adding a $1,500 pool lift to a pool in, say, a $200 million hotel property, is always “readily achievable.” These are arguments, not legal precedents.

But some states, like California, have their own state law on top of the federal ADA, right?

Yes, California has its own set of laws and regulations in this area, including the California Building Code, the Unruh Civil Rights Act and the Disabled Persons Act. None of them require pool lifts in hotel properties built before 1992. However, the California Building Code requires pool lifts to be included in hotels constructed after about 1992. It also requires that any pool that is renovated or altered — anything other than routine maintenance — must have a pool lift installed as part of the alteration.

However, things could change. The ADAAG has been under review for some time. The new proposed guidelines would require lifts for swimming pools, wading pools and spas. Specifically, the ADAAG proposes that where pools are provided, pool lifts, sloped entries, transfer walls, transfer systems and pool stairs will be required. However, the proposed guidelines are still in the public comments phase, and the DOJ has yet to adopt the new guidelines. When the new guidelines will be adopted and exactly what they will contain is anyone’s guess.

With regards to pool safety, what measures should a hotelier take in order to ensure that he/she does not face a lawsuit or complaint from a guest?

Well, I have already mentioned the whole area of accessibility into the pool as opposed to merely up to and around the pool.

But there are other issues, such as entry into the pool area which can be troublesome. For example, the latch to a pool gate must be low enough so that is accessible to those in wheelchairs, but at the same the gate must prevent toddlers from entering the pool area.

Additionally, lifesaving equipment around the pool/spa area, such as life preservers, rings and poles, must be accessible to the disabled.

As we see more Americans travel, we will undoubtedly see more ADA issues arise as well. This is an area that is constantly undergoing change, and it is important to stay informed on the latest developments.

Other articles on ADA

If you found this article of interest, you may want to check out some of the other articles on this topic on www.HotelLawBlog.com which can all be found under the “HOTEL LAW TOPIC” of “ADA” at the top of the home page (or by clicking here). The following are titles and links to some of those articles:

ADA Compliance and Defense Lawyer: Starwood Hotels and The Phoenician get an expensive (and unnecessary) lesson in ADA compliance. Who’s next?

A blast against frivolous, serial ADA lawsuits in striking the right balance

ADA defense lawyers: When disabled hotel guests’ needs go beyond the norm for typical guests, what do hotel owners and managers have to do?

Hospitality Lawyers: 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.

Hotel Lawyers: Americans with Disabilities Act — How recent ADA developments can affect your hotel. Are you ready for a class action ADA lawsuit because of your hotel website?

Hospitality Lawyer with urgent ADA warning: You won’t believe what they want to do with ADA now

Hospitality Lawyers: Defending ADA lawsuits. How your hotel website can make you a target for ADA lawsuits

Hotel Lawyer: How hotel swimming pools may spawn ADA lawsuits and what to do about it.

Hospitality Lawyer — Who’s crying “Woof”? What you must know about the ADA requirements for disabled guests and their service animals

Hospitality Lawyer — Landmark ADA case could provide relief for California hotels.


Hospitality Lawyer: ADA Update — Federal Courts Denying Plaintiffs’ Attorneys’ Fees

Hospitality Lawyer: Big ADA Changes Coming to Hotels

Jim
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Martin H. Orlick is a senior member of the law firm’s Global Hospitality Group® and a partner in the Firm’s Real Estate Department. He has helped clients with almost 200 ADA cases for hotels and other businesses. He is also a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Martin H. Orlick at 415.984.9667 or morlick@jmbm.com.

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Our Perspective. We represent developers, owners and lenders. We have helped our clients as business and legal advisors on more than $50 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 one of the top hotel lawyers in the world. GOOGLE “hotel lawyer” or “hotel mixed-use” or “condo hotel lawyer” and you will see why.

Jim devotes 100% of his practice to hospitality, representing hotel owners, developers and lenders. Jim leads JMBM’s Global Hospitality Group® — a team of 50 seasoned professionals with more than $50 billion of hotel transactional experience, involving more than 1,000 properties located around the globe. In the last 5 years alone, Jim and his team have assisted clients with more than 90 hotel mixed-use projects, all of which have involved at least some residential, and many have also involved significant spa, restaurant, retail, office, sports, and entertainment components — frequently integrated with energizing lifestyle elements.

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. They are a major gateway of hotel finance, facilitating the flow of capital with their legal skill, hospitality industry knowledge and ability to find the right “fit” for all parts of the capital stack. Because they are part of the very fabric of the hotel industry, they are able to help clients identify key business goals, assemble the right team, strategize the approach to optimize value and then get the deal done.

Jim is frequently quoted as an expert on hotel issues by national and industry publications such as The New York Times, The Wall Street Journal, Los Angeles Times, Forbes, BusinessWeek, and Hotel Business. A frequent author and speaker, Jim’s books, articles and many expert panel presentations cover topics reflecting his practice, including hotel and hotel-mixed-use investment and development, negotiating, re-negotiating or terminating hotel management agreements, acquisition and sale of hospitality properties, hotel finance, complex joint venture and entity structure matters, workouts, as well as many operating and strategic issues.

Jim Butler is a Founding Partner of Jeffer, Mangels, Butler & Marmaro LLP and he is Chairman of the firm’s Global Hospitality Group®. If you would like to discuss any hospitality or condo hotel matters, Jim would like to hear from you. Contact him at jbutler@jmbm.com or 310.201.3526. For his views on current industry issues, visit www.HotelLawBlog.com.