Articles Posted in DOJ Actions

Failure to provide an Ounce of ADA Compliance is worth a Pounding by the DOJ
What you can learn from the DOJ’s settlement agreement with Starwood and The Phoenician

 

The Department of Justice (DOJ) continues to make the hospitality sector a target for enforcement of the Americans with Disabilities Act (ADA). Starwood Hotels and Resorts Worldwide, Inc. and The Phoenician are the latest to come to an agreement with the DOJ to make their properties ADA compliant. The settlement agreement was stunning to this ADA lawyer, because of its sheer simplicity and how an industry leader like Starwood could find itself the target of a DOJ investigation over these basic barriers. The compliance areas detailed in the agreement are routine, run-of-the-mill, ADA check-list items that could have been easily identified and corrected by Starwood itself. Instead, Starwood and The Phoenician were dragged through the expense, embarrassment and hassle of a 5-year government investigation. What were they thinking?

First, the DOJ investigation of The Phoenician and Starwood didn’t happen in a vacuum. Here is just a sample of what’s been going on:

  • At the recent 2013 National ADA Symposium which I attended, the former chief of the DOJ’s Civil Rights Division (the principal enforcement agency for the ADA), noted that the hospitality industry remains a prime focus of the Department’s civil rights investigations.
  • The DOJ recently announced that it settled an investigation of the Milford Plaza Hotel, NYC. The hotel’s owner agreed to bring the property into ADA compliance within a brief period of time, thus ending another multi-year investigation.
  • In September 2011, the owners of the top 50 Zagat rated restaurants in New York City received a 17-page survey form from the DOJ to determine their compliance with the accessibility requirements of the ADA. Most of the restaurants entered into voluntary compliance agreements, but in October 2012, the DOJ filed lawsuits against three of the restaurants. See DOJ sues 3 of NYC’s top Zagat-rated restaurants for ADA violations.
  • In 2010, the DOJ and Hilton Worldwide Inc. entered into a 45-page “comprehensive precedent-setting agreement under the ADA that will make state-of-the art accessibility changes to approximately 900 hotels nationwide.” The agreement includes not only Hilton-owned properties, but properties where Hilton is the manager or franchisor. In addition to the removal of architectural barriers, the agreement specifies changes in reservation policies and addresses website accessibility. See Hilton’s ADA Settlement with the DOJ: Precedent-setting agreement delivers more than removing architectural barriers.
  • In January 2009, I reported in the Hotel Law Blog the DOJ’s Times Square Manhattan Theater District “ADA sweep” of nearly 60 hotels. I represented one of those hotels and can tell you that DOJ investigations should be taken very, very seriously. See Is the DOJ’s ADA Compliance Survey Coming to Your City Soon? What to do when you receive the DOJ’s ADA Compliance Review questionnaire.

The DOJ settles 5-year ADA investigation of Starwood Hotels & Resorts Inc. and The Phoenician Hotel and Resort

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As we reported in January of this year, “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) to the extent “readily achievable.” (See ADA Defense Lawyer: Pool lift deadline of January 31, 2013 looms, but may be a diversion from enterprise-wide ADA compliance.)

The 2010 ADAAG Standards went into effect on March 21, 2012, but through the efforts of the American Hotel & Lodging Association and other industry organizations, the Department of Justice (DOJ) postponed the effective date for requiring fixed pool lifts to January 31, 2013.

Since January 31, 2013, a growing number of accessibility lawsuits against hotel owners and operators, alleging pool lift violations, have been threatened or filed in California by a single plaintiff living in Los Angeles County. Five such lawsuits were brought or threatened against Santa Monica, California hotel owners.

What is going on?

In each case, the same alleged physically disabled plaintiff visited a hotel and inquired about making a reservation. At that time, he also asked whether the hotel’s pool and spa had accessible pool lifts. If told the hotel lacked separate pool and spa lifts, the plaintiff (or the plaintiff’s retained investigator) visited the pool and spa to visually confirm the lifts were not available. Subsequently, the plaintiff threatened or filed lawsuits against the hotels claiming denial of full and equal access under the Americans with Disabilities Act (ADA). In addition to compelling the owners or operators to install compliant pool lifts, the lawsuits ask for attorneys’ fees, and minimum or actual damages under California’s Unruh Civil Rights Act and the Disabled Persons Act which laws are designed to prevent discrimination against persons with disabilities.

In California, serial plaintiffs and their lawyers have found these cookie-cutter lawsuits to be lucrative as plaintiffs can claim statutory damages, compensatory damages, treble damages and attorneys’ fees.

We expect to see the same in most other states were ADA lawsuit proliferate. For reference, the “Top 10” for ADA lawsuits are (from most to less) California, Florida, New York, Texas, Pennsylvania, New Jersey, Ohio, Hawaii, North Carolina and Michigan.

Our advice: Investigate, solve the problem with a swift defense, then look at the big picture. Continue ›

Will your city and restaurant be next?

You have worked all your life to get top Zagat ratings for your restaurant. After years of hard work, you’ve made it! And because of that, food lovers from around the world will beat a path to your door.

But, so too will the Department of Justice (DOJ), as the owners and operators of Manhattan’s top 50 Zagat-rated restaurants found out in September of 2011.

That is when each restaurant received a 17-page survey form, courtesy of the Civil Rights Unit of the U.S. Attorney’s Office, Southern District of New York (SDNY), for the purpose of determining compliance of their establishments with the accessibility requirements of the Americans with Disabilities Act or ADA.

Then, in October 2012, the DOJ filed a lawsuit against the owners and operators of 3 of those restaurants. All of the named defendants are part of the Rosa Mexicano restaurant chain. The lawsuit alleges numerous violations of the Americans with Disabilities Act of 1990 (ADA).

Here’s what happened and how the Rosa Mexicano chain could have avoided the lawsuit. Continue ›

The 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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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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What the DOJ says about portable pool lifts and the new ADA Standards

A hotel client called this morning to tell me that they were about to place an order for a large number of portable pool lifts to comply with the 2010 ADA Standards, and asked whether they should take the plunge and buy them.

Without a doubt, the most frequently asked question by our hospitality clients these days is: “What do we need to do to comply with the March 15, 2012 mandatory ADA pool lift requirements?” The second most frequently asked question is: “Our pool lift vendor assures us that its portable pool lift meets all ADA requirements and is “certified” as ADA compliant? Can we rely on that representation?” If you are confused about what the new law requires, you have plenty of company.

The new ADA Standards effective March 15, 2012
The 2010 ADA Standards for pool access have significantly changed the requirements for municipal and private pools by requiring, for the first time, that they be equipped with independently useable pool lifts during all operating hours. Since the DOJ announced its intention to require lifts in nearly all pools, the hotel industry and others have opposed or sought clarification of this provision.

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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 ›

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.

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?

The Department of Justice “ADA Sweeps” in NYC’s Times Square theater district

I have been defending clients in a number of the Department of Justice’s (DOJ’s) ADA investigations. A number of our clients have properties in New York City, and one of them was included in the DOJ’s “Manhattan Hotels/Time Square Theater District ADA Compliance Review Survey”, a sweep of hotels around Time Square. I am the only California lawyer involved in this DOJ investigation. A complaint was lodged by a disabled tourist with the DOJ against one of the 60 Theater District hotels, not our client’s property. Some of the hotels are over 100 years old, while others are newly built or renovated properties. Below are some of the questions I have been asked about this “ADA Sweep”.

Why is the DOJ auditing hotels about ADA compliance?