As discussed below, the new sweeps are a "warning shot" - something that all lodging operators should take very seriously, and they should start working NOW to be prepared for these investigations.

But this is only the tip of the iceberg in terms of what lodging professionals should be thinking of in terms of accessibility compliance. In this article and the next one, I will interview two of the Senior Members of JMBM's Global Hospitality Group® who lead our ADA defense practice for owners and operators.

Marty Orlick is one of the top ADA lawyers in the country, with more than 300 ADA lawsuits and investigations under his belt, and he is actively involved in defending hotels that are included in the DOJ's ADA survey. Jim Abrams, who retired as the President & CEO of the California Hotel & Lodging Association, has advised hundreds of lodging operators about, and written and lectured extensively on, all aspects of accessibility laws that apply to the hospitality industry.

What if I receive an ADA Compliance Questionnaire from DOJ?

Jim Butler: 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?

Marty Orlick: 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.

Don't complete it yourself. Have an ADA defense lawyer review it and advise you, first!

Jim Butler: Why can't a knowledgeable hotel professional answer the questionnaire? Why should a lawyer – much less an ADA defense lawyer – get involved?

Marty Orlick: Each question is designed to obtain precise information about complex, technical compliance with the ADA guidelines. The forms must be completed under penalty of perjury, so wrong answers could subject someone to criminal penalties or create other unfortunate liabilities. Your answers can also help you to clarify the hotel's accessability features, policies and procedures.

In this very technical, legal context, hoteliers are unlikely to understand the legal issues in answering these critical questions. Even lawyers are unlikely to understand the implications unless they specialize in ADA matters. The questions must be thoroughly understood from a "Standard of Compliance" perspective as defined by law.

The wrong answer to a misunderstood question can cause serious problems that could cost you dearly. And the fact that your hotel has spent a lot of time and money to make the property accessible to the disabled does not mean the property will be fully compliant with the ADA.

Jim Butler: Give us an example of a question that could cause a hotelier problems.

Marty Orlick: Questions about guest rooms have to be answered with great care. The questionnaire will likely ask for a description of all room categories in the hotel, and the number of accessible rooms in each distinct room class, because the ADA generally requires hotels to provide accessible rooms in each class. The thing you have to ask is: "What is a "category" or "room class"? In answering the questionnaire, you should NOT list each marketing or price-point category, as opposed to room types that are actually functionally the same accommodations but have minor differences. If you did, you would create a problem. Your hotel may have many marketing-driven categories for rooms, but in actuality your rooms may simply be singles, doubles, queens, kings and suites.

For example, if you have typical guest rooms and upgrade some of them slightly, such as with an extra lamp, higher-end bath amenities and a few extra square feet, you may call them "suites" for marketing purposes. From a functional standpoint, these suites are no different than your normal guest rooms in terms of accessibility. Similarly, if rooms cost an additional five dollars per floor, but there is no difference between the rooms on the 17th and 18th floors, they should not be listed in separate categories for purposes of the accessibility questionnaire. You want to list on the questionnaire the fewest number of functionally different room types/categories, even if they are different than the types/categories you show on your web site for marketing purposes.

Jim Butler: Does the survey focus solely on accessibility-related building standards?

Marty Orlick: No. Not by a long shot. The ADA Compliance Review also specifically focuses on the hotel's written accessibility policies and procedures – or lack of them. So, the ADA defense lawyer should ask you to start pulling together documentation. We need to review the written ADA policies and procedures that are provided to staff to see what they look like. Policies and procedure manuals should detail all the devices installed and all the processes the hotel has established for serving disabled guests.

Jim Butler: Give us some examples of what those policies and procedures should include.

Marty Orlick: Any hotel's written policies and procedures manuals should cover all aspects of its operations as they pertain to disabled individuals and those who travel or are associated with them. This would include such things as:

  • How to easily identify which ADA compliant rooms are available when customers call for reservations.
  • Procedures for hooking up telephone "TDD" devices or smoke alarms for the hearing or seeing impaired, or any other specialized equipment needed for specific disabilities including repositioning furniture and guest amenities.
  • Procedures for the evacuation of disabled guests in event of emergency, and how to work with disabled guests who have service animals.
  • Procedures used to train and monitor how the reservations, sales and operating staff are trained in all these procedures.

Many hotels surveyed will likely have technical ADA barrier violations. Those hotels can do things the easy way, by working cooperatively, through its legal counsel, with DOJ to correct the deficiencies, or they can do things the hard way--by refusing to cooperate or dragging their feet. As we know from our experience in Manhattan, the latter approach will be very lengthy, costly, and difficult.

Simply put, this is too important to mess up. You want an ADA expert's guidance to do this right and avoid unnecessary problems.

Jim Butler: Is there any problem in waiting for the DOJ investigative survey as opposed to being pro-active in this environment?

Marty Orlick: ADA Compliance is an area where an ounce of prevention can be worth a pound of cure. If brought in early enough, we may be able to counsel on relatively few changes that could make an important difference to the investigation.

Similarly, when an owner or operator brings us in immediately on receipt of the investigative survey, we can recommend a pro-active and cooperative approach that will stream line the process, and minimize the cost and disruption to business.

Martin H. Orlick is a senior member of the law firm's Global Hospitality Group® and a partner in the Firm's Real Estate Department. He has helped clients with more than 300 ADA cases for hotels and other businesses. He is also a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Martin H. Orlick at 415.984.9667 or [email protected].

Jim Abrams is a senior member of the JMBM Global Hospitality Group® and the former President and CEO of the California Hotel & Lodging Association. Jim has advised hundreds of lodging operators about, and written and lectured extensively on, all aspects of accessibility laws that apply to the hospitality industry. For more information, contact Jim at 415.398.8080 or [email protected].

This is Jim Butler, author of and hotel lawyer, signing off. We've done more than $60 billion of hotel transactions and have developed innovative solutions to unlock value from troubled hotel transactions. Who's your hotel lawyer?

Our Perspective. We represent hotel lenders, owners and investors. We have helped our clients find business and legal solutions for more than $60 billion of hotel transactions, involving more than 1,000 properties all over the world. For more information, please contact Jim Butler at [email protected] or 310.201.3526.

Jim Butler is a founding partner of JMBM and Chairman of its Global Hospitality Group®. Jim is one of the top hospitality attorneys in the world. GOOGLE "hotel lawyer" and you will see why.

JMBM's troubled asset team has handled more than 1,000 receiverships and many complex insolvency issues. But Jim and his team are more than "just" great hotel lawyers. They are also hospitality consultants and business advisors. For example, they have developed some unique proprietary approaches to unlock value in underwater hotels that can benefit lenders, borrowers and investors. (GOOGLE "JMBM SAVE program".)

Whether it is a troubled investment or new transaction, JMBM's Global Hospitality Group® creates legal and business solutions for hotel owners and lenders. They are deal makers. They can help find the right operator or capital provider. They know who to call and how to reach them.

Jim Butler
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