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20 January 2013

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

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.

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14 January 2013

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Hotel ADA Defense & Compliance Lawyer with some tips on what you should do now.

January 31, 2013 is fast approaching and once again our phones are ringing off the hook and the emails are streaming in. Our hospitality clients want to know the latest action being taken by the Department of Justice (“DOJ”) on the Americans with Disabilities Act requirements for pool lifts at pools and spas at hotels, resorts, country clubs, golf and tennis facilities and other places of “public accommodation.”

So here is where things stand.

The pool lift controversy continues to make a splash,
but is it a diversion from enterprise-wide ADA compliance?

The latest update is that the DOJ has not yet further delayed the January 31, 2013 implementation date.

The DOJ stunned both the hospitality industry and pool manufacturers when it proclaimed that only “fixed” or permanent pool lifts would comply with the new 2010 ADAAG Standards (effective March 21, 2012) to the extent “readily achievable.” Portable pool lifts installed on an as needed basis are prohibited unless it is not readily achievable, in which event a portable lift may be used if it is properly anchored.

Due to the efforts of industry groups like American Hotel & Lodging Association and pool and spa organizations, the DOJ postponed the pool lift effective date from March 21, 2012 to January 31, 2013.

The DOJ’s published position is that pool lifts need to be available at each pool and spa (although only one lift is required at a “cluster” of spas) during all pool and spa operating hours. The DOJ has mandated that only “fixed” pool lifts may be installed at each location unless the business can establish that such installation is not “readily achievable.” In such event, a portable pool lift may be permitted if it is properly secured and in place during operating hours.

All indications are that the DOJ remains intransigent that the pool lift requirement will be enforced on January 31, 2013 and pool lifts must be “fixed” to the extent readily achievable. A determination of what is “readily achievable” requires a legal opinion based on the facts of each case.

The ADA pool lift requirement — Situation summary

In September 2012, the DOJ announced it would extend the fixed pool lift requirement to January 31, 2013. Since then, the pool lift controversy has drawn little public attention, until now. Industry groups continue to work with legislators and DOJ officials to provide a greater degree of certainty and “real world” practicality to the pool lift controversy. Those close to the source believe that the DOJ will affirm the implementation date and its position that fixed pool lifts are required where readily achievable. The pool lift train left the station and those in the know believe the DOJ and disabled advocacy groups will enforce the “fixed” pool lift requirement January 31, 2013. We know of several lawsuits filed over the lack of pool lifts after March 21, 2012. We also know of a number of plaintiff’s lawyers who have been waiting for February 1, 2013 to make their splash into pool lift accessibility litigation.

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18 May 2012

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DOJ extends pool lift deadline

Today, the Department of Justice announced that it is extending the ADA pool lift deadline from May 21, 2012 to January 31, 2013.

Amendment to ADA regulations

This morning, the DOJ formally published an “Amendment of the Americans with Disabilities Act Title II and III Regulations to Extend Compliance Date for Certain Requirements Related to Existing Pools and Spas Provided by State and Local Governments and by Public Accommodations” (ADAAG Sections 242 and 1009 Standards for Accessible Design).

The new pool lift Compliance Date is January 31, 2013. The Amendment acknowledges that the DOJ’s January 31, 2012 technical advisory caused “significant concerns and misunderstandings among a substantial number of pool owners and operators” with respect to the new technical requirements for pool lifts.

Background to the extension

The DOJ recently received and carefully considered comments from pool owners, operators and various industry groups and clarified a number of popular misconceptions about the new requirements. At the end of the day, the DOJ seems to have heard the public outcry, in part.

In its Technical Advisory Document of January 31, 2012, the DOJ sent tsunami-sized waves through the hospitality and pool and spa industries when it announced, for the first time, its interpretation that pool and spa lifts are required to be “fixed” (as opposed to portable) next to the pool or spa at all times the facility is open, unless it is not “readily achievable,” and they cannot be shared between water elements.

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07 May 2012

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Hotel Lawyer ADA defense alert: Charles Schwab settles claim over website accessibility under the Americans with Disabilities Act

On May 2, 2012, Charles Schwab & Co. announced an initiative to make its website more accessible for all customers, particularly those who are blind or have sight disabilities. This high-profile development was part of the settlement of a claim by Kit Lau, a Charles Schwab customer for more than 25 years.

While many have focused on the Americans with Disabilities Act’s (ADA’s) ever-changing pool lift requirements, we continue to see the DOJ and private advocacy groups driving to enforce the original regulations promulgated 20 years ago under the ADA. As of December 31, 2011, more than 13,130 lawsuits had been filed under the ADA, and the trend continues to grow.

Here is what Marty Orlick, the head of our ADA compliance and defense group, and I think the Schwab matter may mean to you.

Charles Schwab settlement is one of 15 prominent web site settlements

Charles Schwab, one of the nation’s leading securities broker-dealers, and a disability rights advocacy attorney, announced last week that they settled a year-long claim by a blind customer that its website was inaccessible to blind, low vision and cognitively challenged customers. The structured negotiations concluded this dispute short of trial.

With this settlement, Charles Schwab joins a list of 15 prominent companies which have settled website accessibility complaints. Charles Schwab agreed that it will make its website more accessible and inclusive for all customers, and agreed to implement the Web Content Accessibility Guidelines (WCAG) Version 2.0 Level AA which will make its website navigable by disabled customers.

An informal complaint backed by the threat of litigation and administrative investigations was lodged with Charles Schwab by the lawyer for a blind day trader. The claimant was a long-time Schwab customer and herself a computer programmer. One morning, she found that she could no longer navigate the Schwab website using JAWS software and was prevented from making trades on-line. The JAWs software reads aloud the text of the page so blind and low vision customers can access the website.

Click here to read a copy of the Charles Schwab Settlement Agreement.

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27 March 2012

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Hotel Lawyer ADA defense alert

Significant legislation has been introduced with AH&LA support to provide relief for ADA compliance on pool lifts. So my ADA expert partner, Marty Orlick, and I thought it might be helpful to explain what is going on, and what it likely means to you. Here is what is happening . . .

One year delay for ADA pool lift requirement

On March 26, 2012, the AH&LA announced support for legislation introduced to force a 1 year delay in enforcing the ADA pool lift requirement. The bill was introduced by Congressman Mick Mulvaney (R-SC) and has 26 original co-sponsors.

Authorize portable pool lifts, sharing lifts and protection for hoteliers during delay

In addition to delaying effectiveness of the pool lift requirement that was originally scheduled to be effective March 15, 2012 and then delayed 90 days until May 15, 2012, the proposed legislation would give some other much-sought-after relief.

It would allow the use of portable pool lifts, and allow sharing of lifts among pools. Both of these alternatives were belatedly prohibited by the Department of Justice’s January 31, 2012 interpretation of its final rules, and would be overturned by the legislation if adopted.

Significant relief for the hotel industry

According to AH&LA President/CEO Joe McInerney. “Portable lifts will allow hoteliers to protect guest safety, while accommodating guests with disabilities. The delay will allow hoteliers the time to implement the necessary changes without the fear of lawsuits.”

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16 March 2012

ADA Defense Lawyer: What does the ADA pool lift compliance extension of May 15 mean for you?

First, let’s be clear that all compliance dates have NOT been extended!

Extended deadline for pool lifts is May 15

Responding to concerns expressed by the hotel, pool and spa manufacturing industries, and those of a number of U.S. Congressmen, on March 15, the White House plunged into the swimming pool access controversy by issuing a 60-day an extension to implement the 2010 ADA Standards for pool lifts. As a result of this action, the new deadline for installing pool lifts is May 21, 2012, but that too may change.

March 15 deadline remains for all other provisions of new ADA Standards

The March 15, 2012 compliance date remains in effect for all other provisions of the 2010 Standards. The Department of Justice will soon publish a Notice of Proposed Rulemaking giving the public 15 days to express their views. We expect the hotel and pool and spa industries will take a much more active role in the public comment process than they did when the 2010 Standards were initially open for comment.

Events have been moving very fast when the official government position changes 180 degrees in less than 24 hours. And that his what has happened. So my ADA expert partner, Marty Orlick, and I thought it might be helpful to explain what is going on, and what it likely means to you.

Here it is . . .

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