The US 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:
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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.
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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.
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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.
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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.
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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 ADA Defense Lawyers: ADA Sweeps by Department of Justice – Coming to a theater district or hotel near you soon? and 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 and The Phoenician Hotel
The latest in the string of hospitality enforcement actions is the investigation of Starwood Hotels & Resorts Worldwide Inc. and The Phoenician Hotel and Resort, located in Scottsdale, Arizona. The settlement resolved a 5-year ADA investigation and compliance review by the DOJ. The U.S. Attorney General through the Civil Rights Division of the DOJ conducted an initial site inspection and instituted a lengthy investigation.
The complaint
Most of these kinds of DOJ investigations are triggered by a complaint made by a single disabled guest who allegedly encounters access barriers at a single property. This is likely how the Starwood/Phoenician investigation began.
The administrative complaint alleges that The Phoenician violates Title III of the ADA because several of its "accessible" guest rooms, public restrooms and other public amenities are inaccessible to guests who use wheelchairs. Inaccessible guest rooms and toilet rooms in lobbies are among the most common elements cited in ADA complaints against hotels, whether the property is an "existing","newly-constructed" or "altered" hotel.
Despite careful design and construction, even experienced architects fail to take into consideration all the complex and interrelated design dimensions required under the ADA and state building codes, and contractors often fail to build in compliance with such standards.
Because The Phoenician was designed and built for first occupancy before January 26, 1992, it has been required to remove "readily achievable" barriers which interfere or prevent access by guests in wheelchairs, and to bring any "altered" elements of the property into compliance.
The settlement agreement
Starwood and The Phoenician have until December 31, 2014 to make all alterations required under the settlement in conformity with the 2010 Americans With Disabilities Act Accessibility Guidelines (ADAAG) Standards which became effective March 15, 2010. See Hospitality Lawyer: Big ADA Changes Coming to Hotels. The changes are to be made in two phases, tied to Starwood's fiscal year.
In Phase I, to be completed before the end of 2013, the hotel agreed to complete modifications to two accessible guest rooms, install tactile signage (raised lettering and Braille room number signs), lower security latches and closet rods, reconfigure the roll-in showers to provide compliant space dimensions, adjust the toilet center line, install compliant grab bars, reconfigure the lavatory height and insulate the under-sink pipes. ADA barrier removal doesn't get much more basic than that!
The height of the guest room thermostat controls and dead bolt locks must also be lowered. The hotel will relocate the accessible parking spaces in the garage to assure they are on the shortest accessible routes to the lobby and other public areas and where sufficient overhead clearance is provided. The hotel will also assure that the showers, saunas, steam rooms, the men's and women's golf locker rooms and toilet rooms are brought into compliance with the 2010 ADA Standards. These basic modifications must be completed within 180 days.
A number of the fixes are simple and inexpensive to address such as insulating under-sink pipes, lowering or adding coat hooks or "D- shaped handles on the accessible stall doors, or installing off-set flanges to adjust the centerline of toilets. Other modifications, like expanding bathroom compartments, leveling floor drains, and expanding roll-in shower dimensions are not so easy to implement and can be prohibitively expensive.
Click here for a copy of the Settlement Agreement with Starwood Hotels and The Phoenician
The big take-away: This DOJ investigation (and its expense) was totally avoidable
The DOJ investigation of The Phoenician and Starwood – and its expense over 5 years – never should have happened. Frankly, the barriers described in the settlement are typical of the hundreds of hotels and resorts that have been surveyed by JMBM's ADA lawyers and our consultants. These barriers are generally detectible by the trained eye and, after examination by trained ADA specialists, can be resolved with proper repair and routine maintenance.
The choice is rather simple:
1. Be proactive: Conduct your own ADA survey and implement a reasonable compliance plan, or
2. Do nothing: Run the risk that the DOJ, a plaintiffs' advocacy group or court will do it for you, with deadlines you cannot easily meet or afford, and requirements that are likely to be tougher and more expensive than what otherwise would have been "good enough".
Moving forward
If you are planning a proactive course of action, consider having your counsel retain an experienced ADA Compliance and Defense Lawyer to quarterback your "ADA audit". You want your ADA counsel to engage ADA architects and access specialists to establish attorney-client and attorney work product privileges.
If you're going to do it, do it right. It is best to undertake an enterprise-wide ADA compliance program to evaluate your entire portfolio. But, at a minimum, you should
(a) assess your high risk properties and
(b) develop written policies and Standard Operating Procedures for guest service excellence as they relate to disabled guests.
The DOJ should never have seen any of these fundamental barriers. They should have been remediated before the DOJ's investigators and architects stepped foot on the property.
In addition to the brick-and-mortar ADA issues addressed by The Phoenician, you should consider whether your reservation policies meet the 2010 ADA Standards, whether your website is accessible to blind and low vision viewers, and whether your hotel is accessible to deaf and hard of hearing guests — particularly when you have any meeting or conference facilities. All these issues are covered by the ADA.
If you choose to ignore the repeated lesson of non-compliance, provided courtesy of the Department of Justice, you may have an even more urgent need to contact your lawyer.
A preventative enterprise-wide ADA compliance program
Too often we see property owners and managers get "stuck" on pool lifts or some other single element of ADA compliance. Don't focus on any single element. The best approach to avoiding an ADA lawsuit is to conduct an ADA compliance and prevention survey of your business. The survey should include an assessment of the following:
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Physical facilities — the brick and mortar
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Written ADA policies, practices and procedures manual
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Reservation system compliance with best practices
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Website accessibility for blind and low-vision guests
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Staff training and competency on using auxiliary aids and services for persons with disabilities (audio and visual)
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Call center and operator training and compliance to accept the many types of Telecommunication Relay Services (TRS) used by deaf, hard of hearing and speech impaired guests and potential guests. (The U.S. Department of Justice has been particularly aggressive when it comes to enforcing hotel policies, practices and procedures regarding the effective use of TRS.)
Subpar performance on any one of these elements could mean trouble in an ADA suit.
The survey should be done under representation of an attorney, which will give the results of the survey protection under attorney-client privilege.
This article was written by Martin H.Orlick, ADA Compliance and Defense Lawyer with the Global Hospitality Group Hotel Lawyers. He has helped hotel, restaurant, retail and other commercial property owners defend more than 500 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. He is also is a senior member of the law firm's Global Hospitality Group, a partner in the real estate department, and a member of the American College of Real Estate Lawyers (ACREL).
The article was first published by Jim Butler of the Global Hospitality Group Hotel Lawyers, authors of the Hotel Law Blog.
