Published on: March 6, 2012

ADA defense and compliance lawyer: More clarification or confusion on March 15 ADA standards?

By Jim Butler and the Global Hospitality Group®

06 March 2012

Click here for the latest articles on ADA Compliance and Defense.

As you should know by now if you are following developments on the Americans with Disabilities Act (or ADA), the most sweeping changes to the ADA in 20 years become effective on March 15, 2012.

It seems that almost every day there is some new development or interpretation of the new rules. For an up-to-date summary of some key provisions, please see articles listed at the end of this posting.

A number of us in the hotel industry have been visiting the DOJ’s Civil Rights Division to get clarification on the recent DOJ guidance on “fixed” pool lifts.

Congressmen intervene with DOJ on pool lift issues

Last week, two prominent Congressmen, Mike Mulvaney and Todd Rokita, jumped into the fray with a letter to DOJ (see below) acknowledging its important efforts to provide swimming pool access to the disabled community. Here are a few highlights from the letter and the full text is below.

Separate pool lift for each water feature? The Congressmen asked the DOJ to provide further clarification on the “fixed” lift requirement, and the apparent new requirement that each water element, pool, spa, wading pool and hot tub have separate permanently fixed accessible lifts.
Concern over safety issues and economic burdens with fixed pool lifts. The Congressmen point to safety considerations for children and others if the lifts remain at poolside at all times the pools are available to the public. They also point out the extreme economic burden to hotel owners if water elements cannot share pool lifts and if pools need to have attendants.
Backlogs with pool lift manufacturers make compliance virtually impossible. They point out that pool lift manufacturers warn of lengthy backlogs in production rendering the March 15, 2012 compliance date all but impossible.
Request for reconsideration and extension of time. Congressmen Mulvaney and Rokita have asked the DOJ reconsider its position on fixed pool lifts for every water element and to extend the March 15, 2012 implementation date.

It remains to be seen whether other public officials will weigh in on this important issue.

Full text of letter

Here is the full text of the letter submitted by Congressmen Mulvaney and Rokita:

Ms. Allison Nichol
Chief, Disability Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Dear Ms. Nichol:

We write concerning the Americans with Disabilities Standards for Accessible Design (“2010 Standards”) as they pertain to hotel pools, spas and pool lifts. We understand that hotel owners associations have contacted you requesting clarification regarding the accessible means of entry for swimming pools and spas for both existing and newly-constructed lodging facilities. The Department of Justice responded to this request by issuing revised guidance in February.

After reviewing the revised guidance, we still have profound concerns that hoteliers in our states will be unable to comply with the 2010 Standards. The revised guidance contemplates that a place of public accommodation may consider a portable pool lift as an alternative to more permanent means of access. However, the revised guidance does not address whether a public accommodation can share a pool lift between multiple pools. Further, the revised guidance requires a pool lift to be poolside and fully operational during all open pool hours, but does not address the concerns of unattended pools and potential safety risks pool lifts kept out at all times may pose to children who try to play on or operate them. We are apprehensive about the economic burden associated with requiring multiple pool lifts and fully attended pool lifts for our constituent hotel operators.

At a minimum, we request that you extend the compliance deadline, which is currently March 15, 2012. There is still uncertainty for hotels in our districts about the proper means to implement and operate pool lifts for their guests, and the costs associated with such compliance. Additionally, manufacturers of pool lifts have warned of lengthy backlogs in production, rendering complete compliance for all hotels impossible by the current deadline.

Finally, we request that you specifically, 1) permit the use of portable pool lifts at all places of public accommodation, 2) permit the sharing of a portable pool lift between multiple pools at a single place of public accommodation, and 3) afford places of public accommodation latitude in making pool lifts available to their guests through check-in, signage or guest request.

We applaud and support the efforts of the Department of Justice to ensure access for persons with disabilities to hotel pools and spas. However, we must ensure that access is provided in a reasonable and economically achievable manner.

We appreciate your attention in this matter, and look forward to your prompt reply.

Sincerely,
_________________________
Todd Rokita (IN-04)
Member of Congress
_________________________
Mick Mulvaney (SC-05)
Member of Congress

WHY YOU SHOULD HIRE JMBM TO HELP YOU WITH ADA ISSUES.
The Global Hospitality Group® of Jeffer Mangels Butler & Mitchell LLP (JMBM) has a unique focus on hospitality and unequaled experience with ADA defense. JMBM’s team has defended owners in more than 500 ADA cases and DOJ actions, and is constantly dealing with these issues. They have more than 20 years’ experience with the ADA – in making the tough calls, and seeing what the hot buttons are for private lawsuits and the government.

Unless you are absolutely sure your hotel is ADA compliant, contact JMBM now to see how we can help you. It is a lot cheaper to do that now, than to call us after you have been sued.

Jim Butler
Chairman, Global Hospitality Group®
jbutler@jmbm.com
(310) 201-3526
Marty Orlick
Senior Member, Global Hospitality Group®
Chairman, ADA Defense Team
morlick@jmbm.com
(415) 984-9667
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.

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

GlobeSt.com interviews JMBM’s ADA Compliance and Defense Lawyers

ADA ALERT – A call to action before the March 15, 2012 ADA deadline

DOJ clarifies March 15, 2012 mandatory pool lift requirement! (Uh-oh!)

New ADA compliance standards for golf courses. What do they mean to you?

Quick! Can you pass this 3-question ADA pop quiz?

New ADA regulations kick in soon. Say goodbye to “grandfathering” under the ADA.

Updating Service Animal Policies of Your Hotel or Other “Place of Lodging”

How to handle an ADA lawsuit . . . and How not to do it

How a recent ADA case affects all hotels but particularly conference centers and meeting hotels

ADA Defense Lawyer Alert: Hilton’s ADA Settlement with the Department of Justice: Precedent-setting agreement delivers more than removing architectural barriers

ADA Defense Lawyer Alert: New Regulations Now in Effect

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

Department of Justice (DOJ) ADA enforcement “sweeps” hit the West Coast. What you need to know now.

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

ADA Compliance is no longer an option. There is a “new sheriff” in town, and problem prevention costs a fraction of defense and compliance under a microscope.

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.

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

This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. We’ve done more than $87 billion of hotel transactions and have developed innovative solutions to unlock value from hotels. Who’s your hotel lawyer?

________________________
Martin H. Orlick is one of the top ADA defense lawyers in the country, having helped clients with more almost 500 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.

________________________
Our Perspective. We represent hotel lenders, owners and investors. We have helped our clients find business and legal solutions for more than $125 billion of hotel transactions, involving more than 4,700 properties all over the world. For more information, please contact Jim Butler at jbutler@jmbm.com or +1 (310) 201-3526.

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Jim Butler

Jim Butler is recognized as one of the top hotel lawyers in the world. He devotes 100% of his practice to hospitality, representing hotel owners, developers and lenders. Jim leads JMBM’s Global Hospitality Group® — a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion.
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Robert Kaplan is a partner in JMBM's Bankruptcy, Insolvency and Restructurings Group and a senior member of the Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. Bob represents lenders, special servicers, hard money lenders, community banks, national banking associations, distressed debt investors, and equity investors, positioning them for the best possible outcome by acting expeditiously to preserve value and increase cash flow. His industry experience and his knowledge of the current capital markets -- where distressed assets often include complex deal structures and securitized loans -- allows him to bring creative and effective strategies to the table. When aggressive litigation is the best strategy, he is a vigorous and effective advocate for his clients. Bob represented the securitized lender in the Chapter 11 bankruptcy case filed by the Clift Hotel in San Francisco, and in the subsequent negotiations and successful sale of the loan to a third party. The lender -- acting by and through GMAC Commercial Mortgage Corporation as special servicer -- was the holder of a $60 million loan secured by a Deed of Trust on the Clift Hotel. He has also served as counsel to CapMark, J.E. Robert Company, Inc., AMRESCO Management Inc. and Midland Loan Servicer in their capacity as special servicers on troubled hotel loans in CMBS pools. For more information, contact Robert Kaplan at 415.984.9673 or rkaplan@jmbm.com.

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Martin Orlick is a partner in JMBM's Real Estate Department and a senior member of JMBM's Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. Marty specializes in representing hospitality industry clients in Americans With Disabilities Act (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. Marty is a member of the American College of Real Estate Lawyers (ACREL) and a frequent speaker on the ADA and other topics. To read Marty's articles, go to www.HotelLawBlog.comand select "ADA." For more information, please contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.

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Mark S. Adams is an experienced trial lawyer and a member of JMBM's Global Hospitality Group® and Chinese Investment Group™. He focuses his practice on business litigation including contracts, corporate and partnership disputes, and hospitality disputes and litigation. On behalf of hotel and resort owners, Mark has successfully litigated the termination of long-term, no-cut, hotel management agreements, franchise agreements, fiduciary duty issues, investor-owner disputes, TOT assessments, and more. He has wide-ranging trial experience in a variety of commercial disputes, including complex multi-party litigation and class actions. He has tried numerous cases in state courts, federal courts, and in domestic and international arbitrations, and is a frequent author and speaker on trial practice. Mark's trial wins have been covered by Forbes, Reuters, and other publications. He has obtained two of California's annual 50 largest jury verdicts in the same year. Mark has taken or defended nearly 1,000 depositions throughout North America, Europe and the Middle East. He has been quoted as an expert on noncompete agreements in the Wall Street Journal. For more information, contact Mark at 949. 623.7230 or markadams@jmbm.com.

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Bennett Young is a partner in JMBM's Bankruptcy, Insolvency and Restructurings Group and a senior member of the Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. His clients include lenders, financial institutions, secured and unsecured creditors, distressed investment funds, businesses, receivers, special servicers and creditors' committees. Ben represented the owner of a partially completed multi-billion dollar resort property in the restructuring of its finances and has represented lenders to hotels and casinos. For more information, contact Ben Young at 415.984.9626 or byoung@jmbm.com

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Ask the Hotel Lawyer™ is a quarterly column that I write for JMBM's Global Hospitality Advisor®. If you have a question you would like to submit to Ask the Hotel Lawyer™ please use the comments box below. While your question may not be of sufficient general interest for the column, I will try to respond to you individually if you leave your contact information below.
Jim Butler.