Author of www.HotelLawBlog.com
26 November 2006
Hotel Lawyer on ADA. Hotel ADA problem? If your establishment is a “no pets” hotel, how do you respond to disabled guests and their service animals? Can you demand proof from a hotel guest that an animal is, indeed, a service animal? What can you do if the barking of a canine service animal disturbs other guests? What if a guest claims that a monkey is a service animal, needed to alert the guest to some danger, such as fire or smoke in a room? What can you ask a guest about a claimed disability and his or her service animal before you run afoul of the law?
My partner, Marty Orlick helps clients with all kinds of ADA matters. He has defended clients in almost 200 cases dealing with the Americans with Disabilities Act (ADA) and he has been asked all of these questions over the years. According to Marty, the best time to answer these questions is before a disabled guest lodges a complaint or files a lawsuit claiming discrimination and civil rights violations.
Service animals are not pets
According to the law, service animals are not pets. Whether your hotel is “pet friendly” or a “no pets” establishment does not affect your obligation to treat disabled guests with service animals like all other guests: they are to be provided the same services and access to all areas of the hotel’s property that other guests are allowed such as pool areas, laundries, business centers, lobbies, restaurants and so on. Health codes that prohibit animals in restaurants do not apply to service animals.
Many states, such as California, recognize “service canines,” such as sight or guide dogs, signal dogs and seizure alert dogs. But under the ADA, which is enforced throughout the 50 U.S. states, the definition of “service animals” includes any kind of animal individually trained to provide assistance. Service monkeys have been encountered and can provide legitimate services to the disabled. But the potential for abusing the “service animals” designation is obvious, so what can hotel staff do?
Marty’s advice is this: if a hotel guest says that he or she is disabled and the animal is a service animal, your hotel staff should be trained to check the guest in and ask if they need any additional assistance. Staff can ask the potential guest what kind of assistance the animal provides, but that is all. Staff can neither ask the individual to prove their disability nor inquire about the nature of the person’s disability. (Some disabilities are “invisible” such as seizures and hearing impairment.) Staff cannot demand any certification or proof that the animal is a “service animal.” Further inquiry on the subject can embarrass your disabled guests and open your establishment to potential liability.
What if the service animal causes problems?
If other guests complain of the mere presence of the service animal, your staff should explain the law requires hotels to welcome disabled guests and their service animals. If the service animal becomes unreasonably disruptive or threatening, the animal’s owner — not the hotel — is responsible for controlling the animal. Service animals are specifically trained to act appropriately around people. They are not dangerous, and are usually quite tidy. However, if the service animal becomes dangerous or disruptive, hotel staff can remove the animal. The hotel guest, of course, should be welcome to stay at the hotel without the animal.
Hotels cannot impose a separate charge or cleaning deposit for service animals, even if it generally charges for pets. However, like any other guest, the animal’s owner is responsible for supervising and caring for it. The disabled guest is responsible for cleaning up after their service animal, protecting the public from vicious animals, and paying to repair any damage to the property caused by their animal.
Yapping Dog Has Its Day in Court
In May 2004, the 9th Circuit handed down a decision that has set a precedent for the treatment of disruptive service animals (Lentini v. California Center for the Arts). In this case, a performing arts center tried to bar a disabled patron and her yapping dog from attending a concert performance because the dog allegedly had been previously disruptive. (This particular service animal yapped to warn the owner of people in close proximity.) When the disabled patron refused to leave the Center with her service animal, she was threatened with arrest.
The Court ruled that the Center had to modify its policies to allow the disabled patron to attend performances with a service animal even though it may have made disruptive noises at past performances, because such behavior would have been acceptable if engaged in by humans (although a spoken warning, not a barking one!). Humans certainly can scream out “Fire” if there is one. So, too, can a service animal alert its disabled owner to potential danger.
The Center unsuccessfully argued the admission of the service animal would fundamentally alter the nature of their service by disrupting the performance. However, the Court found the Center failed to prove the dog’s yapping would necessarily be disruptive. Thus, the Court recognized under certain circumstances where the animal was disruptive, unrelated to its service function, it could be removed or excluded.
(To make matters worse for the Center in this case, the Center’s manager and another employee had lied about the incident — there were no complaints from patrons. The Center and its two employees were ordered to pay monetary damages to the plaintiff.)
Educating Your Hotel Staff
The California Hotel and Lodging Association (CH&LA) with the help of the American Hotel and Lodging Association and America Express, has launched a national campaign to teach people in the hospitality industry how to provide service to disabled guests who depend on service animals for assistance. My friend, Jim Abrams, President and CEO of the CH&LA points out that welcoming disabled guests and their service animals into your hotel is the law — but it is also the right thing to do. The CH&LA has produced helpful pamphlets and a video that address commonly encountered issues regarding service animals in hotels. The pamphlet can be accessed, and the video viewed, by visiting the CH&LA’s website at http://www.calodging.com/products/service_animals.shtml
Jim Abrams and Marty Orlick agree that hotel management must ensure that hotel employees are properly educated about service animals. A carefully drawn policy for dealing with disabled guests and their service animals, backed up by good training of hotel employees, can help avoid embarrassing encounters for disabled guests and expensive litigation for hotel owners.
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:
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
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 more than 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 email@example.com.
James O. Abrams is President and CEO of the California Hotel & Lodging Association (CH&LA) and the author of Laws Pertaining to the California Innkeeper. Jim can be reached at 1.800.678.2462 or firstname.lastname@example.org.
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 email@example.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.
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 firstname.lastname@example.org or 310.201.3526. For his views on current industry issues, visit www.HotelLawBlog.com.