2.26.14  

  Law360  

 

Kara M. Maciel wrote an article titled "Addressing ADA Issues in Hotel Management Agreements."

 

When acquiring or managing a restaurant or hotel, many owners and operators overlook the significant and costly implications that compliance under the federal Americans with Disabilities Act could have on the hotel's bottom line in the future. Because of the proliferation in drive-by lawsuits from professional plaintiffs and U.S. Department of Justice investigations across the country, any hospitality company considering a new ownership or management agreement of a lodging or restaurant facility should closely evaluate and consider the state of ADA compliance within the facility to determine how best to protect their asset.

 

The 2010 ADA Standards

 

Generally, Title III of the ADA prohibits discrimination against individuals "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation."[1] Thus, restaurants and hotels are legally required to make goods and services available to and usable by individuals with disabilities on an equal basis with members of the general public.

 

In so doing, they must comply with specific requirements set out in the U.S. Department of Justice regulations, which include detailed architectural requirements known as the ADA Standards for Accessible Design (ADA standards).[2]

 

In 2010, the DOJ revised the ADA standards, which contain new architectural requirements and involve the modification of business policies and procedures when necessary to serve customers with disabilities. The revised regulations contain the 2010 Standards for Accessible Design, which revise the 1991 standards, and require that places of public accommodation remove physical barriers for individuals with disabilities to the extent that it is readily achievable to do so.

 

Notably, pursuant to the ADA's "safe harbor" exemption, elements of existing facilities that comply with the 1991 standards are not required to comply with the 2010 standards until such facilities are subject to future alterations. Any renovations and alterations after March 15, 2012, must be done in accordance with the 2010 standards, to the maximum extent feasible.

 

1. Readily Achievable Standard

 

The ADA does not require existing buildings built prior to Jan. 26, 1992, to meet its stringent standards for newly constructed/altered facilities. Rather, such buildings are required to take certain limited steps to improve access to individuals with disabilities, including the obligation to remove architectural barriers when it is readily achievable to do so; in other words, when barrier removal is "easily accomplishable and able to be carried out without much difficulty or expense."

 

The decision of what is readily achievable is made considering the size, type and overall finances of the hotel and the nature and cost of the access improvements needed. Barrier removal that is presently difficult may be readily achievable in the future as finances change.

 

Many building features that are common in older facilities such as narrow doors, a step or a round door knob at an entrance door, or a high guest check-in counter are barriers to access by people with disabilities. Removing barriers by either ramping a curb, widening an entrance door, installing visual alarms, or designating a lower counter for guest check-in is often essential to ensure equal opportunity for people with disabilities.

 

Because removing these and other common barriers can be simple and inexpensive in some cases and difficult and costly in others, the regulations for the ADA provide a flexible approach to compliance. This practical approach requires that barriers be removed in existing facilities only when it is readily achievable to do so.

 

2. Maximum Extent Feasible Standard

 

On the other hand, any "alterations" made to a facility since 1992 must be made in full compliance with the ADA standards, to the maximum extent feasible. The ADA does not expressly define the term "alteration;" however, the DOJ defines "alteration" to mean any change to an existing building that affects or could affect the usability of a facility or any part thereof.

 

Alteration includes remodeling, renovation, rearrangements in structural parts, and changes or rearrangements of walls and full-height partitions or making other changes that affect (or could affect) the usability of the facility. The ADA does not consider normal maintenance, re-roofing, painting, wallpapering, or changes to electrical and mechanical systems to be alterations unless they affect usability of the building.

 

The phrase "to the maximum extent feasible," applies only to the occasional case where the nature of an existing facility makes it virtually impossible to comply fully with the ADA standards through a planned alteration. In all other cases, the alterations that can be made accessible must be made accessible.

 

Furthermore, when a facility undertakes an alteration that affects or could affect the usability of or access to a "primary function area," an accessible path of travel to the altered area must be made accessible to and usable by individuals with disabilities to the extent that the added accessibility costs are not disproportionate to the overall cost of the original alteration. Pursuant to the ADA, the added accessibility costs will be considered disproportionate if they exceed 20 percent of the original alteration.

 

Key Revisions to Architectural Requirements

 

In conducting an audit or inspection of a property, some of the key architectural requirements under the ADA for newly designed and constructed places of public accommodations to be accessible to and usable by individuals with disabilities, involve the following:

 

1. Accessible Entrances

 

Understanding how guests arrive at and move through hotels and restaurants is the best way to identify any existing barriers and set priorities for their removal. The 2010 standards provide the following priorities for barrier removal:

 

• Providing access from public sidewalks, parking areas and public transportation;

• Providing access to services (e.g., restaurants and spas);

• Providing access to public restrooms; and

• Removing barriers to other amenities offered to guests (e.g., drinking fountains, elevators and ATMs).

 

Consequently, efforts should be made by owners and operators to ensure that:

• there is an obvious accessible path from the street sidewalk to the entry;

• a portion of the check-in counter in the main lobby of the hotel is appropriate for use by an individual who uses a wheelchair;

• restaurants and bars have accessible pathways and accessible seating;

• conference/meeting room entrances are wide enough for wheelchair passage; and

• the main lobby has at least one fully accessible restroom.

 

In particular, if the main entrance cannot be made accessible, alternate accessible entrances can be used. If a restaurant or hotel has several entrances and only one is accessible, a sign should be posted at the inaccessible entrances directing individuals to the accessible entrance. This entrance must be open whenever other public entrances are open. The 2010 standards require that 60 percent of all public entrances be accessible.

 

2. Swimming Pools, Wading Pools, Spas, Saunas and Steam Rooms

 

Accessible means of entry/exit are required for all swimming pools and hot tubs. In particular, the 2010 standards require at least two accessible means for entry for larger pools (300 or more liner feet) and at least one accessible entry for smaller pools. At least one entry must be a sloped entry or pool lift; the other could be a sloped entry, pool lift, a transfer wall or a transfer system.

 

Wading pools must provide a sloped entry into the deepest part of each wading pool. If a property has one spa, it must be accessible. Thus, it must provide a pool lift, transfer wall or transfer system.

 

If there is more than one spa, 5 percent of the total must be accessible. Further, at a resort property, for example, if there is more than one cluster of whirlpools, 5 percent of each cluster must be accessible.

 

The ADA 2010 standards for pool lifts require lifts to be fixed and to meet additional requirements, including location, size of the seat and lifting capacity. Thus, to the extent it is "readily achievable," a pool owner and operator must provide a fixed lift that meets all of the 2010 standards' requirements.[3] Notably, one such requirement is that the pool lift remains in place and be operational during all times that the pool is open to guests.

 

Saunas and steam rooms also must be accessible, having appropriate turning space (a minimum of 60 inches in diameter), doors that do not swing into the clear floor space, and, where provided, an accessible bench. A readily removable bench is permitted to obstruct the turning space and the clear floor space.

 

3. Parking

 

Pursuant to the 2010 standards, hotels must provide a sufficient number of parking spaces for cars and vans if it is readily achievable to do so, depending on the total number of parking spaces available. One of every six spaces must be van accessible. An accessible parking space must have an access aisle, which allows a person using a wheelchair or other mobility device to get in and out of the vehicle.

 

4. Exercise Rooms

 

The 2010 standards dictate that at least one of each type of exercise equipment must provide 30 by 48 inches of clear floor space positioned for transfer by someone using a wheelchair and be on a 36-inch wide accessible route. For machines on which individuals have to stand up, the clear floor space can be in the accessible pathway route.

 

Thus, once satisfied that a hotel's fitness center is in compliance with the ADA, trainers and other fitness room staff must be instructed not to move exercise equipment, as such rearrangements could impede an individual's access and result in noncompliance with the ADA.

 

Considerations Between Managers and Owners for ADA Compliance

 

Since hospitality owners and operators are jointly and severally liable for noncompliance with the ADA, they should proactively and cooperatively work together to ensure that their restaurants and hotels are legally compliant to minimize vulnerability to "drive-by" lawsuits and DOJ investigations.

 

Navigating the ADA requires careful consideration and advanced planning; therefore, prudent owners and operators must work together to chart an effective compliant course when drafting management agreements to ensure legal compliance.

 

Particularly, even before signing a management agreement, a manager should conduct due diligence of the property early in the process that includes:

 

1. an on-site survey of the facilities;

2. review of any operational policies and procedures, construction history, prior ADA surveyor reviews, and history status of the properties; and

3. determining if the property has been or is likely to be in the crosshairs of "drive-by" plaintiffs and government enforcement agencies.

 

Prudent managers should also ensure indemnification provisions are included in the agreements for any ADA noncompliance issues. Likewise, the agreement must clearly set forth each party's defense and remediation responsibilities with respect to the ADA.

 

Throughout the ownership and management of a property, operators should modify their policies, practices and procedures to ensure that disabled guests have equal opportunities to enjoy the facility's accommodations and services.

 

At the direction of legal counsel, and thus under the protection of the attorney-client privilege, owners and operators should conduct regular inspections of their properties. Special care should be made to areas that the general public easily sees, utilizes and accesses, such as parking lot, entrance, lobby, service counters, dining and bar areas, and public bathrooms.

 

Finally, a critical and often overlooked component of ensuring success is comprehensive and ongoing staff training about the ADA's requirements. Although established good policies are a necessary first step, problems can still arise if front-line staff members are not aware of them.

 

Thus, managers should ensure that their staffs understand the requirements on communicating with and assisting customers and are trained in handling accessibility-related requests. All too often, lawsuits are commenced because of an employee's lack of knowledge and/or lack of courtesy in handling a request for an accommodation.

 

In short, because failure to comply with the ADA can cost significant monetary sums, hospitality owners and operators should not overlook and/or discount their statutory obligations at any point in their business relationship.

 

ENDNOTES

 

[1] 42 U.S.C. § 12182(a).

[2] See 28 C.F.R. Part 36, Appendix "A."

[3] There is, however, a "safe harbor" for hotels that purchased a portable, nonfixed lift prior to March 15, 2012. Because of a misunderstanding by some pool owners regarding whether the use of portable pool lifts would comply with barrier removal obligations, the DOJ has confirmed that as a matter of prosecutorial discretion, it will not enforce the fixed elements of the 2010 standards against those owners or operators of existing pools who purchased portable lifts prior to March 15, 2012, so long as those lifts otherwise comply with the requirements of the 2010 standards.

 

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