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On November 9, 2010, the U.S. Department of Justice’s Civil Rights Division (DOJ) and Hilton Worldwide, Inc. (Hilton) announced that they entered into a 45-page “comprehensive precedent-setting agreement under the Americans with Disabilities Act of 1990 (ADA) that will make state-of-the-art accessibility changes to approximately 900 hotels nationwide.”

More than the usual removal of architectural barriers, the changes include providing disabled guests the same room choices as other guests, guaranteeing accessible rooms will be available when they have been reserved, and making the central Internet reservation system more accessible. The agreement includes not only Hilton-owned properties, but properties where Hilton is the manager or franchisor.

The lawsuit was filed after the DOJ completed ADA surveys of 13 Hilton-related hotels. Hilton denied all allegations, but cooperated with DOJ investigators throughout the extended investigation and agreed to pay a $50,000 civil penalty.

Background of lawsuit
The Court-approved Consent Decree and Final Judgment resolved the lawsuit United States of America v. Hilton Worldwide, Inc., filed in the United States District Court for the District of Columbia. The lawsuit alleges that Hilton, Conrad Hotels and Resorts, Doubletree, Embassy Suites, Hampton Inn, Hampton Garden Inn, Hilton Grand Vacations, Homewood Suites, the Waldorf Astoria, the Waldorf Astoria Collection and Home2Suites by Hilton have policies, practices and procedures which discriminate against individuals with disabilities.

The lawsuit also alleges that Hilton either owns, manages, or enters into franchise license agreements with the owners of hotels that failed to design and construct facilities built after January 26, 1993, (the date the ADA was fully effective), that were in compliance with the “new construction standards” of the ADA. The DOJ focused on hotels built after the 1993 date because those properties were required to be constructed without any access barriers. This strategy enabled the DOJ to avoid the more complex litigation issues involved in “readily achievable barrier removal” that is required of properties built prior to 1993.

The Complaint alleged that hotels were designed and built without the federally mandated number of accessible guestrooms dispersed among the different categories of available accommodations (suites, deluxe rooms, view rooms, etc.).

Complaints, sweeps, and system-wide investigations

Typically, a DOJ hotel investigation begins with a guest complaint at a particular hotel which is ignored or poorly handled by the owner or operator. Matters commonly escalate if the guest files a formal ADA complaint with the DOJ’s Civil Rights Division. All complaints are investigated.

The DOJ may also institute geographical “sweeps” such as the New York Times Square/Theater District investigations that took place several years ago. This comprehensive ADA investigation of 60 Times Square hotels — including boutique hotels and international flag properties — was initiated after a single guest’s complaint. A similar sweep of apartment complexes took place in Louisville, Kentucky.

The DOJ has also initiated a number of system-wide investigations against the nation’s leading hotels and retailers. Over the years, the DOJ has litigated or otherwise negotiated Consent Decrees with such prominent hotel flags as Ramada Ltd. (2010), Days Inns of America, Inc. (1999), Marriott International, Inc., Courtyard Management Corporation (1996), Motel 6 Operating LP (2004 and 2007) and Bass Hotels and Resorts (1998). Continue ›

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CASp may not be a “silver bullet” but CASp compliance is still a smart move

California’s 2009 Construction-Related Accessibility Standards Compliance Act (“the Act”) was designed to curb abusive ADA litigation by creating the Certified Access Specialist program (CASp). CASp enables business owners to follow procedures to “certify” that their facilities meet state and federal accessibility standards. One benefit CASp offers is that business owners with certification have the option to stay or stop all construction-related ADA litigation initiated against them and instead proceed to mediation, making it possible to avoid expensive and lengthy proceedings that drive up legal fees. But a recent court decision suggests this may not be the case when sued in federal court, suggesting that CASp may not offer all the benefits intended by the California legislators.

California’s Construction-Related Accessibility Standards Compliance Act

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On July 23, 2010, the U.S. Attorney General signed into law important revisions to the Department of Justice’s Regulations implementing the Americans with Disabilities Act. The new regulations also include substantial and far reaching revisions to the Americans with Disabilities Act Accessibility Guidelines (ADAAG), which are now known as the 2010 ADA Standards for Accessible Design (2010 Standards). On September 15, 2010, the new Regulations/2010 Standards were published in the Federal Register, thereby triggering two important implementation periods.

Compliance with the new Regulations will be required commencing on March 15, 2011, with the exception of (1) the new obligations of hotels to modify their reservation policies relating to individuals with disabilities, and (2) the 2010 Standards; these two components become mandatory one year later, on March 15, 2012. However, compliance with the 2010 Standards is permitted as of September 15, 2010, and any public accommodation or commercial facility that is newly constructed, altered, or undergoes “readily achievable barrier removal” prior to the March 15, 2012, effective date of the 2010 Standards should include consideration of the new standards and incorporate them as appropriate.

The new DOJ Regulations/2010 Standards affect all U.S. hotels, financial institutions, shopping centers, retail stores, recreational facilities, and other properties such as restaurants that are a classified as a “public accommodation” or a “commercial facility” under the American with Disabilities Act of 1990 (ADA).

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ADA enforcement “sweeps” hit the West Coast — Exactly what does this mean to the lodging industry?

If I am the owner or manager of a hotel and get an envelope from the DOJ with one of its ADA Compliance Review questionnaires, what should I do?


First, take it very seriously! Get the questionnaire to the right person as quickly as possible. You want an experienced ADA defense lawyer to walk you through these deceptively simple questions. DOJ is surveying both hotel owners and managers, and the last thing you want is for this document to be sitting in someone’s inbox while the person tries to figure out what it means and who should be dealing with it. Every question on the form has been carefully drafted to elicit important information about ADA compliance. The survey is specifically focused on identifying architectural and communications (e.g., signage) access barriers and, equally important, your hotel’s ADA policies and procedures. It is very detailed. Completing the questionnaire will take time and careful thought.

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Mass-produced ADA litigation: Plaintiff and his lawyer sanctioned

The end to sue-and-settle “drive bys”?

A couple of weeks ago, a Los Angeles County Superior Court Judge granted a business owner’s motion for sanctions under California Code of Civil Procedure Section 128.7 against a plaintiff who has filed many ADA cases against Southern California businesses.

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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. Continue ›

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What to do when you receive an ADA Compliance Questionnaire from the U.S. Department of Justice

Earlier this year, I wrote about the the sweeping scope of the DOJ’s ADA Compliance Review Survey of Manhattan hotels.  Today, I’ll answer questions about what to do if you receive such a questionnaire from the DOJ.  Be aware that if you receive an ADA questionnaire from the DOJ, it is very likely its investigators have already been to your establishment and have identified some issues of concern.

If I am a hotel owner or manager and I get an envelope from the DOJ with the ADA Compliance Review questionnaire inside. What do I do?

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ADA Lawyer Update: California Supreme Court decision likely to fuel increased ADA litigation, but the Certified Access Specialists program (CASp) offers some protection


A step backward

In a decision that is likely to lead to more lawsuits filed under the Americans with Disabilities Act (ADA) and California’s disabled access laws, the California Supreme Court unanimously ruled on June 12, 2009 that plaintiffs do not have to prove “intentional discrimination” to recover the $4,000 minimum statutory damages provided, per occurrence, under California’s Unruh Civil Rights Act.

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The Global Financial Crisis is motivating lenders, developers and operators to get creative. We at JMBM are busy looking at opportunities with our clients to purchase and/or reposition distressed hotel properties, unsold condo hotels or condo hotel inventory, and unsold timeshares and timeshare inventory. Some of these properties will need to be renovated and repurposed to compete in this difficult market. It is important to understand what physical modifications to a timeshare, hotel or other facility may involve upgrades under the Americans with Disabilities Act and applicable state disabled access laws.


How can you determine if your property is compliant with applicable access laws?

Title III of the Americans with Disabilities Act prohibits discrimination against individuals “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges,

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ADA Compliance perspective

With the increasing importance of ADA compliance for hotels, restaurants, and other public places, we are lucky to have a team that can help set up ADA compliance approaches and programs to minimize later issues on new construction, rehab, and defense of ADA claims from the government or private litigants. Our team is led by Marty Orlick, a seasoned veteran who has seen ADA issues tested in defending more than 300 ADA lawsuits, many of them involving hotels, restaurants and hospitality facilities.

Marty stresses that our role is not avoid the ADA, but rather to help clients interpret the often murky requirement to understand what their obligations are and develop reasonable plans for compliance that are likely to meet the test of future challenge.

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