ADA Compliance and Defense Blog
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?
The DOJ has primary jurisdiction to enforce the ADA — a piece of Civil Rights legislation passed by Congress in 1990 that is intended to prohibit discrimination based on disability, giving the disabled population full and equal access to places of public accommodation. Since there is no federal “building department” which is responsible for enforcing the ADA in private construction, the DOJ has left enforcement of the ADA to local building departments. However, when serious violations are brought to the attention of the DOJ in areas where significant and high profile industry-wide impacts can be achieved, the DOJ, through the offices of local U.S. Attorneys’ offices around the country, will enforce the ADA.
How does that relate to hotels?
The ADA is divided into five “titles” or sections. Hotel owners and lawyers are most familiar with Title III which addresses places of public accommodation and mandates the removal of architectural and communication barriers, requires modifications in policies and procedures, and provides for other accessible services.
Were hotel owners the target of the survey or did they specify management companies?
It was fairly inclusive — the survey, signed under penalty of perjury, was sent to owners, managers, and their corporate organizations. And the survey specifically included all other hotel properties owned or operated by the hotel and management companies in that jurisdiction.
What kinds of properties were included in the survey — are they looking at just the high end hotels?
The survey included nearly every property within a mile of the Time Square Theater District without differentiation–all kinds of properties: boutique, luxury, national brands, limited service – no type of property was immune. What the hotels had in common was their proximity to Time Square.
The Manhattan Hotels ADA Compliance Review
The 20-page survey document is called “The Manhattan Hotels ADA Compliance Review” and it was mailed to 60 Manhattan hotels early in 2005. The questionnaire details every aspect of the ADA that applies to hotels, and the hotels were given 30 days to respond under oath. Depending on the survey responses and the DOJ’s informal survey by its access consultant, the hotel was either deemed compliant or was scrutinized more carefully.
What kinds of items were included in the 20-page questionnaire?
I have been doing ADA audits for more than 10 years, and I can assure you that the survey was comprehensive in scope. It included ADA standards well-understood in the hotel industry such as: accessible parking, public entrances, reception areas, paths of travel, conference rooms, fitness rooms, pools, accessible guest rooms and of equal importance, dispersal of accessible guestrooms across the full range of available rooms, locations, floors, views, and similar important factors. This is not a “drive-by” snapshot as we have seen. It is a comprehensive survey of the hotel’s accessibility features. The DOJ is interested in reviewing the hotel’s written ADA policies, practices and procedures manual.
What level of detail was required for each of these areas?
The level of detail required was significant. The DOJ wants to know not only if the hotel had the required number of guest rooms for disabled guests, the required number of rooms with roll-in showers, and the number of rooms for the hearing impaired. They want to know if these rooms are dispersed equally among types of rooms, and each type of suites, smoking / non-smoking; king beds / double beds; rooms with views / without views; spread equally among all floors. They want to know how these rooms are priced relative to other rooms. The DOJ wants to know about on-property and on-line registration and check-in policies and procedures.
What areas on the survey were unexpected?
Some hotels were surprised that the DOJ asked for written policies and procedures relative to disabled guests and accommodations. If modifications were made to accommodate the ADA in the past, the DOJ wanted a copy of the permits for the work performed. The DOJ has asked for “as built” drawings which are then reviewed by the DOJ’s architectural staff for ADA compliance. The DOJ doesn’t leave any stones unturned. They asked hotels for any imminent plans for ADA modifications, as well as for those planned in the next 3, 6 and 12 months.
Site Inspections Trigger Architectural and Procedural Changes
After the hotels sent in responses, what happened next?
A team of experts from Main Justice and from the New York Attorney General’s office made on-site inspections to verify the information provided by each hotel. The team included investigators, architects specializing in accessible design and other professionals.
And after the site inspection what happened?
It is an on-going process. The DOJ and New York U.S. Attorney’s office are very serious about ADA compliance. Hotels are making architectural changes as well as implementing new policies and procedures, depending on the results of the site inspection.
Are there properties that are refusing to participate or not moving fast enough for the DOJ?
Initially, there were a number of hotels that dragged their heels and a few that refused to cooperate. That was a big mistake, in my opinion. The DOJ and the New York AG are committed to a barrier-free hotel industry and can impose penalties as well as file lawsuits. Hotels are not, and should not be interested in either of those scenarios. Likewise, the DOJ would prefer to enter into a Voluntary Compliance Agreement with the hotels rather than to force compliance through litigation.
What has your role been as counsel to certain hotels involved in the survey?
My role has been to protect the owner and management company by conducting an independent survey of our client’s hotel, assessing the level of accessibility, retaining experts, recommending cost-effective barrier removal strategies, presenting the facts to the DOJ and negotiating a reasonable resolution, taking into account the DOJ’s objectives and the resources of the hotel. I am the only California-based attorney that has been involved in this process. It has allowed us to keep our finger on the pulse of ADA enforcement activity and help our clients nationwide to bring their properties up to the standards required by the DOJ in New York and to give our clients a heads up on the DOJ’s investigations nationally.
Other Cities Could be Targeted
What if you don’t have a hotel in New York? Should you care about this?
Yes, absolutely you should care. First, barrier removal is required by law and is good for business. The DOJ’s reach is nationwide and it is possible they will target other cities like Boston, San Francisco, Chicago, Miami, Orlando, and San Diego — cities that attract a large tourist population. The DOJ would engage the help of the Attorney General’s office in those jurisdictions.
How is the DOJ survey and inspection process different from the ADA audits you perform and your work in defending ADA lawsuits?
Our ADA compliance audits are very thorough – we cover all the areas included in the DOJ’s survey. But the stakes are much higher with Main Justice and the Attorney General’s office involved. Hotels that have experienced ADA litigation — particularly in California where plaintiffs can recover actual, punitive and statutory damages, as well as attorneys fees — understand that the lawsuit is quite often about the money and less about strict compliance with the ADA Standards. You begin to question their true motives. While there are legitimate plaintiffs’ groups working toward increased ADA compliance, there are many others that are of the “sue and settle” variety: they seem to be more interested in the payment of damages and attorney’s fees and less interested in the removal of architectural barriers or changes in hotel procedures. What you have in Manhattan is the highest level government enforcement agency pursuing real change. The DOJ and the AG have the resources to follow up repeatedly, and the muscle to enforce change.
If I receive this 20-page questionnaire about ADA compliance, what should I do first?
Take it very seriously, and call on an ADA expert.
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.