U.S. Attorney's Office for the District of Massachusetts Initiates ADA Compliance Investigation into Boston Area Hotels

The U.S. Attorney's Office for the District of Massachusetts (USAO-MA) recently began investigating hotels in the Boston area for their compliance with Title III of the Americans with Disabilities Act (ADA). The ADA authorizes the U.S. Department of Justice (DOJ) to investigate complaints submitted by members of the public and to undertake compliance reviews of covered entities on its own initiative. The DOJ may file a civil lawsuit against a covered entity in federal court in any case that involves a pattern or practice of discrimination or raises issues of general public importance. Such cases can result in injunctive relief, monetary damages, and/or civil penalties.

This is not the first time the federal government has investigated a group of hotels, and the prior investigations demonstrate hotel companies should be very concerned about his development. In 2005, U.S. Attorney's Office for the Southern District of New York (USAO-SDNY) launched its Hotels Initiative which, in part, was designed to enforce the ADA. As part of the Hotels Initiative, the USAO-SDNY conducted ADA compliance reviews of almost fifty hotels located in Times Square. The USAO-SDNY required each hotel within the scope of the initiative to complete a survey. Upon receiving the completed surveys, the USAO-SDNY conducted on-site inspections of each hotel. The initiative resulted in a number of Voluntary Compliance Agreements between the DOJ and Times Square area hotels, and lawsuits against five hotels which culminated in court-ordered consent decrees.

Similarly, in February of 2011, the U.S. Attorney's Office for the District of New Jersey (USAO-NJ) commenced a similar review of hotels and casinos located in Atlantic City. The USAO-NJ sent each targeted hotel and casino a survey form, and notified each property that the USAO-NJ likely will conduct an on-site inspection to confirm survey responses and review for ADA compliance. Based on preliminary indicators, we anticipate that the process that the USAO-MA is currently undertaking will be similar to the New York-Times Square and New Jersey-Atlantic City investigations.

Will Your Hotel's Recreational Facilities and Reservations Processes Be Ready on March 15, 2012?

On September 15, 2010, the Department of Justice (DOJ) published revised regulations to the Americans with Disabilities Act (2010 ADA Regulations) which include a new set of detailed accessibility standards for lodging and other public accommodations facilities (2010 ADA Standards). The 2010 ADA Standards added requirements and standards for certain recreational facilities that were not included in the 1991 ADA Standards. Such recreational facilities include: swimming pools, wading pools, and spas; saunas and steam rooms; exercise machines and equipment; play areas; fishing piers and platforms; recreational boating facilities; golf facilities; amusement rides; mini golf facilities; shoot facilities; team or player seating; an accessible route to bowling lanes; and an accessible route to court sports facilities.

Hotels must bring these existing recreational facilities into compliance with the 2010 ADA Standards by March 15, 2012, if it is "readily achievable" to do so. The 2010 ADA Regulations defines "readily achievable" as "easily accomplishable and able to be carried out without much difficulty or expense." This analysis requires an examination of many factors such as the nature and cost of the action needed to remove the barrier, the impact of the barrier removal on operational issues, and the resources of the owner and operator of the hotel (and its corporate parent where applicable).

The DOJ also created new rules in the 2010 ADA Regulations for reservations policies, practices, and procedures. Effective March 15, 2012, for reservations made by any means, hotels must:

1.Modify their policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not require accessible rooms; 2.Identify and describe accessible features of their hotels and guest rooms via their reservations systems in sufficient detail to reasonably permit individuals with disabilities to independently determine whether a hotel or guest room meets his/her accessibility needs; 3.Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type are rented and the requested accessible room is the only remaining room of that type; 4.Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the requested guest rooms are blocked and removed from all reservations systems; and 5.Guarantee that the specific reserved accessible guest room is held for the reserving guest, regardless of whether the room is held in response to reservations made by others.

The 2010 ADA Standards and the 2010 ADA regulations can be found online at www.ada.gov.

DOJ Delays Rulemakings on Standards for Website Accessibility but Pushes Forward on Equipment and Furniture

In September 2010, we alerted you to the U.S. Department of Justice's two Advanced Notices of Proposed Rulemakings (ANPRMs) issued under Title III of the Americans with Disabilities Act (ADA). Click here to read our September 2010 Newsletter. Comments concerning the ANPRMS were due on January 24, 2011. One ANPRM concerned public accommodation websites, and the other concerns a public accommodation's self-service equipment and furniture. Seyfarth Shaw submitted comments to the DOJ in response to each ANPRM on behalf of the American Hotel & Lodging Association. The DOJ will issue a Notice of Proposed Rulemaking ("NPRM") that reduces the content of each ANPRM to a full text of the proposed rulemaking.

The DOJ anticipates issuing the NPRM governing public accommodation equipment and furniture by December 2011, and the NPRM covering public accommodation websites by December 2012, pushing back its date by a year. We expect that significant issues for hotels in the equipment and furniture NPRM will be bed height in accessible rooms and accessible exercise equipment in hotel recreational facilities. There will be a comment period commencing the day each NPRM is published in the Federal Register in which the public may respond to any aspect of the NPRM.