One year delay for ADA pool lift requirement
On March 26, 2012, the AH&LA announced support for legislation introduced to force a 1 year delay in enforcing the ADA pool lift requirement. The bill was introduced by Congressman Mick Mulvaney (R-SC) and has 26 original co-sponsors.
Authorize portable pool lifts, sharing lifts and protection for hoteliers during delay
ADA Defense Lawyer: What does the ADA pool lift compliance extension of May 15 mean for you?
First, let’s be clear that all compliance dates have NOT been extended!
Extended deadline for pool lifts is May 15
Responding to concerns expressed by the hotel, pool and spa manufacturing industries, and those of a number of U.S. Congressmen, on March 15, the White House plunged into the swimming pool access controversy by issuing a 60-day an extension to implement the 2010 ADA Standards for pool lifts. As a result of this action, the new deadline for installing pool lifts is May 21, 2012, but that too may change.
March 15 deadline remains for all other provisions of new ADA Standards
The March 15, 2012 compliance date remains in effect for all other provisions of the 2010 Standards. The Department of Justice will soon publish a Notice of Proposed Rulemaking giving the public 15 days to express their views. We expect the hotel and pool and spa industries will take a much more active role in the public comment process than they did when the 2010 Standards were initially open for comment.
As you should know by now if you are following developments on the Americans with Disabilities Act (or ADA), the most sweeping changes to the ADA in 20 years become effective on March 15, 2012.
It seems that almost every day there is some new development or interpretation of the new rules. For an up-to-date summary of some key provisions, please see articles listed at the end of this posting.
The hotel industry has been visiting the DOJ’s Civil Rights Division to get clarification on the recent DOJ guidance on “fixed” pool lifts.
Congressmen intervene with DOJ on pool lift issues
Last week, two prominent Congressmen, Mike Mulvaney and Todd Rokita, jumped into the fray with a letter to DOJ (see below) acknowledging its important efforts to provide swimming pool access to the disabled community. Here are a few highlights from the letter and the full text is below.
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SAN FRANCISCO-The Department of Justice gave March 15 as the deadline for all hotel properties to install pool lifts for disabled guests who could not otherwise use the facilities independently. According to the DOJ, these lifts must be fixed, well-maintained, and exclusive to each pool.
Recently, Martin H. Orlilck, an Americans with Disabilities defense lawyer, sat down with GlobeSt.com’s Miriam Lamey to discuss the impending deadline and how the hotel industry has and will respond to the requirements.
A question and answer session follows:
GlobeSt.com: What do you think the new regulations mean for the industry?
Orlick:This requirement for accessible pool lifts is not new. The actual requirement has been around for the past 15 years. There have been advocacy groups and therapeutic practitioners who have been advocating for pool lifts for that long. And there were a lot of things that take a long time: It takes a while for the technology to catch up with the ideology. And so therapists and advocacy groups and individuals were pressing for pool lifts and other types of devices including health and fitness equipment while the technology didn’t exist. And there weren’t the right manufacturers; there were a lot of questions about what the standards should be for this type of device. In 2008,the Department of Justice made it clear that they were going to be developing some guidelines for accessible pools. But up until 2010 when these standards were approved, the only requirement was to [be able to] get someone with a disability to the pool.
GlobeSt.com: So what hospitality operators supposed to do after that?
Orlick: Well, that’s the point. But that was the extent of the law: you just needed an accessible path of travel to the pool. Not to get so much into the pool. And for the past number of years, disabled advocacy groups have been complaining about it. Some problems included that there was no way for people to get in or out of the pool, independently or with other assistance. So, an individual [with a disability] would be now paying for the pool that’s built into his or her rates, and they don’t get to use the pool facilities as anyone else would.
GlobeSt.com: What was the response?
Orlick: Well, the access board and Department of Justice worked on developing technical standards for a pool lift. And they’ve done that over the last couple of years. Now, the 2010 standards include scoping provisions – in other words, how many pool lifts does a hotel have to have, where they need to be and the technical requirements. Now, scoping requirements and technical requirements are part of 2010 standards. [The latter] define what the lift is supposed to look like, how it is supposed to operate and so on. The seat is supposed to be a certain size, the lift is supposed to drop 18 inches into the water, things like that.
GlobeSt.com: What does that mean to the industry?
Orlick: The industry is confused – it’s genuinely confused. It’s confused and I’m getting phone calls every day – every couple of hours! – from operators of hotels who are saying “what do I do?” And their concerns are in part financial, but they are not financially-driven. I don’t believe that. They are more driven to asking, “what does the Department of Justice actually require?” And “what does it mean as far as the operations of my property?” Continue ›
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.
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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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.
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.
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?
ADA Compliance and Defense Blog