Buying a hotel? Don’t buy an ADA lawsuit or DOJ investigation
JMBM Global Hospitality Group member Eudeen Chang defends hotels in ADA litigation and explains to investors how the ADA can affect their hotel investment.
The current legal landscape of ADA enforcement
Private plaintiff lawsuits: The last decade has seen an explosion of private plaintiff lawsuits, including class actions and actions against individual hotels (and other properties classified as “public accommodations”) alleging violations of the ADA. In states like California where ADA plaintiffs can recover actual, punitive and statutory damages, individual plaintiffs of the “sue-and settle” variety have filed thousands of lawsuits claiming nearly identical violations at numerous locations.
DOJ investigations: In addition to private plaintiff lawsuits, the United States Department of Justice also has actively sought to enforce the ADA in the form of individual property investigations, geographical sweeps and system-wide investigations.
- Individual property investigations: A DOJ investigation of an individual property often begins with a guest complaint at a particular hotel that is ignored or poorly handled by the owner or operator. Matters commonly escalate if the guest files a formal ADA complaint with the DOJ’s Civil Rights Division. All complaints are actively investigated.
- Geographic sweeps: The DOJ also has instituted geographical “sweeps” such as the New York Times Square/Theater District investigations from several years ago. This comprehensive ADA investigation of 60 Times Square hotels — including boutique hotels and international flag properties — was initiated after a single guest’s complaint. It was a targeted investigation.
- System-wide investigations: The DOJ has also initiated a number of system-wide investigations against the nation’s leading hotels and retailers. Over the years, the DOJ has litigated or otherwise negotiated Consent Orders or Decrees with other prominent hotel flags such as Ramada Ltd. (2010), Days Inns of America Inc. (1999), Marriott International Inc., Courtyard Management Corporation (1996), Motel 6 Operating LP (2004 and 2007) and Bass Hotels and Resorts (1998). In November 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 current legal landscape has created a new reality for investors. It is very possible for an investor, when purchasing a hotel or motel, to buy itself an ADA lawsuit. The property may contain architectural barriers that violate the ADA and may give rise to a private plaintiff lawsuit and/or a complaint to the DOJ that leads to a DOJ investigation. The policies and procedures of the hotel operation may also be in violation of the ADA. (Procedures would include items such as online and third-party reservations, how to deal with service animals or how to ensure that the number of guestrooms that must be fully accessible are available.) It is also possible the hotel may be currently under investigation by the DOJ, or is currently the subject of an ADA lawsuit.
Moreover, substantial revisions to the Americans with Disabilities Act Accessibility Guidelines (ADAAG) were included in the DOJ’s revised 2010 regulations that implement the ADA. These new regulations go into effect March 15, 2011 (with certain exceptions, and those go into effect March 15, 2012). The new 2010 standards impose both technical requirements (for example, the specifications a property must meet to be fully accessible) and scoping requirements (the number of rooms or elements in a facility that must be fully accessible). It is possible that a hotel that has been in compliance with the ADA in the past will not be in compliance in the near future.
It is imperative that an investor protect itself before completing a purchase transaction by performing due diligence in this area. For example, if potential ADA violations exist, the investor can either require that the seller correct the problems as a condition of closing, obtain an estimate for the barrier removal and demand from the seller a credit in escrow or ask the seller to reduce the purchase price accordingly. Prior to completing a purchase, the investor should consider performing due diligence in three broad areas:
- Legal: Determine whether the property is being investigated by the DOJ or if there are existing ADA lawsuits against the owner or operator;
- Architectural: Retain an ADA consultant to survey the property and determine whether architectural barriers exist.
- Operational: Determine whether the hotel’s operator has effective policies and procedures for serving disabled guests.
Eudeen Chang is a lawyer in the Litigation Department of JMBM’s Orange County, California, office and a member of JMBM’s Global Hospitality Group. Contact Eudeen at EChang@jmbm.com.