ADA Compliance and Defense Blog
You have certainly heard about the new rules going into effect on March 15 under the Americans with Disabilities Act or “ADA.” Here is some straight talk about WHY you should act now, and WHAT you should do.
5 REASONS YOU SHOULD ACT NOW!
- March 15, 2012 is the effective date for the most sweeping changes to the ADA in 20 years.
- These changes directly affect every hotel owner and operator in the United States.
- Experts expect that a tidal wave of private lawsuits and DOJ enforcement actions will start on March 16, 2012, and that it will dwarf the 12,000 lawsuits filed over the past five or six years under the original ADA.
- Owners and operators are each jointly and severally liable for violations of the ADA, and they will likely both be sued. Most ADA claims are not covered by insurance, but most management agreements will require owners to pay or indemnify operators for such claims.
- It is much cheaper to prevent lawsuits than to fight them. You can pay a little now to avoid the problem, or you can pay a lot more later to deal with it.
Why act now? It is the law. It is the right thing to do. It is much more cost-effective to prevent lawsuits that to fight them.
If you wait and get sued or investigated by the DOJ, in addition to the cost of making the property fully compliant, you may get hit with fines, plaintiff’s attorneys’ fees and costs. Some states, like California, also can award damages. And the DOJ can fine hotels up to $55,000 for the first ADA offense and $110,000 for each subsequent offense.
WHAT ACTION SHOULD YOU TAKE?
The new ADA requirements cover 2 broad areas: (1) policies and procedures, and (2) the property itself (along with its related facilities).
The action you should take now is prevention, prevention and prevention.
That means you should have ADA experts analyze your hotel property and operations to determine deficiencies so you can fix them before there is a problem.
The best way to do this is to hire ADA-experienced attorneys who will engage an appropriate accessibility consultant. Use of attorneys generally provides certain legal privileges to maintain confidentiality of the consultant’s reports and your communications on strategy and implementation. Experienced ADA compliance attorneys also help make the difficult judgment calls on what the law requires (much of which is subjective, and all of which is constantly evolving).
THE END GAME
The goal is to ensure your hotel complies with both the original ADA and new rules that go into effect March 15, 2012.
You should complete this ADA compliance survey as soon as possible, identify items that need fixing and agree upon an expedited approach to eliminate deficiencies before you have any problems.
Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotels, restaurants, retailers, shopping centers, banks and other commercial property owners defend more than 600 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. Marty is the Chair of JMBM’s ADA Compliance & Defense Group, a Partner in JMBM’s Real Estate Group, 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.