28 March 2010
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ADA Counsel with pragmatic advice: What does the ADA require hotel owners and managers to do for their disabled guests?
Hoteliers can face certain extreme situations that are not addressed in plain language of Title III of the Americans with Disabilities Act (ADA). In relevant part, it provides that, among other requirements, places of “public accommodation” must provide certain “auxiliary aides and services”. In these unusual cases, the counsel of an experienced ADA lawyer like Marty Orlick, a senior member of JMBM’s Global Hospitality Group®, is invaluable. He has helped numerous hotels and restaurant clients establish compliance with all aspects of the ADA and resolve more than 300 ADA claims.
Today, Marty provides some very practical advice on dealing with exceptional situations with disabled guests.
Hotels and the ADA: How far do the responsibilities of hotel owners and managers extend to their disabled guests?
by Martin H. Orlick
As many hotel owners know, both Title III of the Americans with Disabilities Act (ADA) and California law mandates that all public accommodations–including virtually all hotels and inns–remove architectural and communication barriers, modify their policies and procedures, and provide other auxiliary aides and accessible services. But these requirements can be difficult to understand even for the most experienced lodging owners. In particular, many of our hotel clients struggle to define what “auxiliary aides and services” imply for their business and how they can comply with federal ADA standards when certain extreme situations occur.
Take for example, a recent suit: A paralyzed guest filed a federal lawsuit against an Akron, Ohio hotel after he was “banned” for accidentally soiling his linens because his colostomy bag failed while he was asleep. Though he paid for the linens and left the maid a hefty tip, he was told by a night desk clerk that he was “banned for life” by the hotel manager when he attempted to stay at the hotel again. He is now suing the hotel under the Americans with Disabilities Act for discrimination against the disabled.
Was the hotel manager’s decision to “ban” the disabled guest legally justified? Or, should the hotel have rightfully provided special personal services? This is not an easy question to answer, but here are some guidelines to clarify ADA boundaries.
The ADA requires public accommodations to provide auxiliary aides and services to disabled guests; however, it specifically does not require a public accommodation to provide customers, clients or participants with personal devices such as wheelchairs, and individually prescribed devices, such as prescription eyeglasses or hearing aides, or services of a personal nature, including assistance in eating, toileting or dressing. Does this umbrella of personal assistance include cleaning up a disabled guest’s biological waste? Not only have employees not been generally trained to handle human waste, but the situation also presents hazardous public health issues for staff and other guests.
While this case is extreme, it is common for hotel guests, including those who are disabled, to have needs that go beyond the typical lodging services provided for guests in general. It is important to remember that hotels are not hospitals or nursing homes. Hotels have a responsibility to individuals with disabilities to ensure that they receive the privileges that the facilities offer as fully as possible, but not when the need fundamentally alters the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or places an undue burden on hotel staff.
On the other hand, the types of auxiliary aides and services that a hotel should provide include: telecommunications devices and services for deaf or hearing impaired guests, a means of decoding captions for individuals with impaired hearing in places of lodging that provides televisions in five or more guest rooms, an effective method of making visually delivered materials available to individuals with visual impairment, and services that ensure effective communication with disabled individuals.
The level of service a hotel should provide to comply with the ADA can be unclear. Combined with weaving your way through federal and state laws, compliance can turn into more of a maze than a hotel owner would expect. The cost to lodging operators in litigation each year is many millions of dollars. Now is the time to get to know your hotel’s policies and procedures. Call an ADA lawyer to make sure your hotel is in compliance.
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.
Below is a partial listing of articles by JMBM’s ADA Defense Lawyer team:
The ADA Compliance and Defense Guide — Free Download
ADA Defense Lawyer: New ADA standards for website accessibility
Starwood Hotels and The Phoenician get an expensive (and unnecessary) lesson in ADA compliance.
DOJ sues 3 of NYC’s top Zagat-rated restaurants for ADA violations
Charles Schwab settles claim over website accessibility
A blast against frivolous, serial ADA lawsuits in striking the right balance
New ADA compliance standards for golf courses. What do they mean to you?
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
Defending ADA lawsuits. How your hotel website can make you a target for ADA lawsuits
Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotel, restaurant, retail and other commercial property owners defend more than 500 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance. 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.
Jim Butler is a founding partner of JMBM, and the founder and chairman of JMBM’s Global Hospitality Group® and Chinese Investment Group®. He is recognized as one of the top hotel lawyers in the world and has authored or co-authored The HMA & Franchise Agreement Handbook, How to Buy a Hotel Handbook, The ADA Compliance and Defense Guide, and The Lenders Handbook. Jim has led the Global Hospitality Group® in more than $87 billion of hotel transactional experience, involving more than 3,900 hotel properties located around the globe. Jim’s team has worked on more than 60 EB-5 projects over the past three years. 310.201-3526 or jbutler@jmbm.comThis 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?
Our Perspective. We represent hotel owners, developers 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.
Jim Butler is a founding partner of JMBM, and Chairman of its Global Hospitality Group® and Chinese Investment Group®. Jim is one of the top hospitality attorneys in the world. GOOGLE “hotel lawyer” and you will see why. 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.