Articles Posted in Compliance

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New Resource: The ADA Compliance and Defense Guide

Download your free copy here.

The Global Hospitality Group® of Jeffer Mangels Butler & Mitchell LLP (JMBM) is pleased to announce the latest publication in our We Wrote the Book™ series : The ADA Compliance and Defense Guide, a practical handbook for owners and operators of hotels, restaurants, golf courses, spas and sports facilities, banks and other financial institutions, retail stores, shopping centers, theaters, sports arenas, and other places of “public accommodation,” as defined by the Americans with Disabilities Act (ADA).

Co-authored by JMBM’s ADA Compliance & Defense Group Chairman, Martin H. “Marty” Orlick and JMBM’s Global Hospitality Group® Chairman, Jim Butler, the Guide reflects the complexities and ever-expanding requirements of the ADA.

About The ADA Compliance and Defense Guide, Understanding, preventing and defending claims and enforcement actions under the ADA

It will not surprise U.S. hotel owners and operators to learn that that business owners and operators in the U.S. have been subjected to more than 20,000 ADA civil lawsuits and DOJ enforcement actions since the ADA was enacted in 1991 – and most of those lawsuits were filed in the last 5 years. JMBM’s Global Hospitality Group® provides practical ADA compliance and defense advice for owners and operators. This book is an example and was written specifically to help owners and operators understand the challenges they face, encourage preventative compliance, and to prepare to defend ADA lawsuits.

Written in plain language, the Guide includes information on requirements for accessible websites, service animals, pool lifts, auxiliary aids, and the importance of developing company-wide ADA policies and procedures. Through numerous case studies, the Guide also addresses Department of Justice investigations and private plaintiff litigation.

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Since at least 2000, the U.S. Department of Justice (DOJ) has been advocating standardized website development and content to promote access to blind and low vision internet users.  In 2013, the DOJ withdrew its proposed Advanced Notice of Proposed Rule Making (ANPRM) which would have established standardized internet protocols by adopting the Web Content Accessibility Guidelines (WCAG) 2.0.

In 2006, we reported on the landmark case National Federation of the Blind v. Target Corporation, regarding “cyber accessibility” (a term we coined). Target was the first case in which any court ruled that the ADA applied to a retail website. With limited exception, the few courts that had addressed the subject uniformly held that the ADA only applied to brick and mortar architectural barriers, not to internet retail channels (Access Now, Inc. v. Southwest Airlines.)

Target argued that it complied with the ADA because its retail stores were fully compliant and that its website channel was not covered by the ADA standards.  The Court disagreed.  Plaintiffs’ class certification motion was granted.  Target paid a hefty sum and implemented WCAG standards to make its website accessible to blind and low vision customers.  The Target decision was followed with Rendon v. Valleycrest Productions Ltd.  Since Target, the DOJ and other agencies have imposed accessibility requirements for web content and services in Consent Decrees and Settlement Agreements with such industry leaders as Amazon.com, Netflix, H&R Block, Hilton International and others.

Website standards are imminent

The DOJ’s issuance of website standards is not a matter of “if”, but “when.” The regulations will “establish requirements for making goods, services, facilities, privileges, accommodations, or advantages” offered by state and local government agencies and businesses via the Internet, “specifically at sites on the World Wide Web,” accessible to persons with disabilities.
On November 25, 2014, the DOJ Civil Rights Division issued its Advance Notice of Proposed Rule Making entitled “Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.”  These revised regulations, when adopted, will implement web site development standards which the DOJ has been working on for nearly a decade.

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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.

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.

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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!

  1. March 15, 2012 is the effective date for the most sweeping changes to the ADA in 20 years.
  2. These changes directly affect every hotel owner and operator in the United States.
  3. 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.
  4. 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.
  5. 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.

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What you need to know for your golf course to comply with the new ADA Standards and how to avoid costly litigation or a DOJ investigation

ADA Compliance is par for the course

Effective March 15, 2012, all … golf courses open to play by the general public must comply with the requirements of the new 2010 ADA Standards for accessible design.

Do you remember when top pro golfer Casey Martin successfully sued under the Americans with Disabilities Act (the ADA) to require the PGA to change its tournament policies to permit him to use a golf cart to accommodate his disability? Martin’s suit alleged that the PGA’s rule banning use of golf carts in certain of its tournaments violated the ADA. The United States Supreme Court sided with him. PGA Tour, Inc. vs. Casey Martin (2001) 532 U.S. 661.

Who knew then that in 2010, the Department of Justice (“DOJ”) would implement sweeping accessibility requirements for public and private golf courses? Well, every golf course owner, lessee and operator who was paying attention to the evolution of the ADA should have seen these changes on the horizon. “Golf courses” are specifically identified as “public accommodations” under the ADA. The 2010 changes to physical accessibility and policies and procedures have been on the radar screen of recreational advocates, disabled golf enthusiasts, the U.S. Access Board and the Department of Justice (or DOJ) for a long time. Continue ›

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Certain regulations become effective March 15, 2012. Hopefully, you are already working on bringing your swimming pools, wading pools and spas, golf facilities, fitness facilities, steam rooms, and saunas (and more — see below) into compliance with the 2010 Standards for Accessible Design (specifically the 2010 Standards for Public Accommodations and Commercial Facilities: Title III), which were adopted by the Department of Justice on September 15, 2010 as part of the revised Regulations of the Americans with Disabilities Act (“ADA”). Compliance with the 2010 Standards become mandatory for certain properties and certain elements of all properties as of March 15, 2012.


What is the standard and what facilities are affected? Title III of the ADA requires that each “public accommodation” remove architectural barriers where “readily achievable.” No property will be “grandfathered” (even if built prior to 1990; i.e., the implementation of the ADA). There is no “safe harbor” applicable with respect to those elements in existing facilities that are subject to supplemental requirements (i.e., elements for which there are neither technical nor scoping specifications in the prior 1991 Standards). By way of example only, the following elements of a public accommodation must be modified to the extent “readily achievable” to comply with the 2010 Standards:

  1. Exercise machines and equipment.
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ADA Defense & Compliance Lawyer: ADA reservation system requirements

The US Department of Justice has revised the regulations implementing the Americans with Disabilities Act (ADA) for the first time in nearly 20 years. While the revisions to the ADA Regulations include broad changes in many areas, today’s blog focuses on the changes to Reservation Policies.

JMBM hotel and timeshare lawyer, David Sudeck informs us that the Department of Justice has received so many complaints concerning failed reservations, that the DOJ felt it necessary to include the changes to the law. Most of the complaints involve individuals who have reserved an accessible hotel room only to find upon check-in that the room they reserved was either not available or not accessible.

The changes to the reservation policies will go into effect on March 15, 2012 to allow properties time to comply with the new requirements. To understand the requirements, read on.
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Jim Butler, Chair of JMBM’s Global Hospitality Group reports that many investors view our current economic downtime as the perfect opportunity to purchase distressed hotel and motel assets at substantial discounts. Before any of these investors complete a purchase transaction, however, they should add one more item to their due diligence checklist: whether the hotel’s physical property and operating procedures comply with the Americans with Disabilities Act (ADA), and similar state statues.

Hotel Buyer Beware: When you buy a hotel, don’t buy an ADA lawsuit

The current legal landscape of ADA enforcement

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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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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 ›