March 28, 2012
On March 15, 2012, new regulations implementing Title III of the Americans with Disabilities Act ("ADA") took effect, imposing significant new obligations on public accommodations, including inns, motels, hotels, and other "places of lodging" such as rental units in vacation communities and timeshares. See 28 C.F.R. § 36.104. The new regulations include requirements for policies, practices, and procedures for accommodating disabled persons, as well as significant revisions to the ADA design and construction standards ("ADA Standards").
The regulations provide a "safe harbor," which generally exempts existing facilities from most of the new design and construction standards until such facilities are altered, provided they are currently in compliance with the prior construction standards. However, certain new requirements relating to pools, spas and recreational facilities are not subject to this "safe harbor," and existing facilities are required to comply with these new regulations and standards, except where it would not be "readily achievable" to do so.
To assist our clients in the hospitality industry, the most significant of the new regulations affecting hotels and other places of lodging are discussed below.
I. Accessible Reservation Systems
The regulations impose new requirements for the reservation of accessible guest rooms at places of lodging. Specifically, with respect to reservations made by any means (e.g., telephone, in-person, Internet, or through a third party), an owner, lessor, lessee, or operator of a place of lodging is required to:
i. Modify its 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 need accessible rooms;
ii. Identify and describe accessible features of the place of lodging and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given place of lodging or guest room meets his/her accessibility needs;
iii. Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;
iv. Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservation systems; and
v. Guarantee that the specific accessible guest room reserved through its reservations system is held for the reserving guest, regardless of whether a specific room is held in response to reservations made by others.
The Department of Justice has provided detailed guidance for implementing each of these new requirements.
II. Accessible Recreation Facilities
The new ADA Standards include accessibility requirements for recreational facilities, which were not subject to the 1991 ADA Standards. These facilities are expressly not subject to the "safe harbor" provision, 28 C.F.R. § 36.304(d)(2)(iii), but the new requirements apply only to the extent they are "readily achievable." Id. § 36.304(d)(2)(iii). Whether a particular alteration is readily achievable depends on the circumstances, including the nature and cost of the alteration, the resources of the facility owner, and impacts to operation of the facility. Id. § 36.104.
1. Exercise Machines and Equipment
Sections 236, 1004, and 206.2.13 of the new ADA Standards require that at least one of each type of exercise machine is on an accessible route and has a clear floor space "positioned for transfer or for use by an individual seated in a wheelchair." It is not necessary to alter existing exercise machines or equipment in order to make them more accessible to persons with disabilities.
2. Golf Facilities
Prior ADA standards included requirements for certain elements of golf facilities, including parking and locker rooms. Sections 238, 1006, and 206.2.15 of the new ADA Standards, however, apply for the first time to certain elements of the golf course itself. For example, facilities must provide accessible routes for golf carts, and ensure that golf carts can access putting greens, tees, weather shelters, driving ranges, and practice greens.
3. Play Areas
Sections 240, 1008, and 206.2.17 of the new ADA Standards include requirements for play areas for children ages 2 and over, with exceptions for certain facilities. The standards specify the number and nature of accessible play components, and require accessible routes and ground surfaces within the play area. Hotels and other places of lodging must "regularly and frequently" inspect and maintain ground surfaces of play areas so that they remain in compliance.
4. Saunas and Steam Rooms
Sections 241 and 612 of the new ADA Standards include requirements for saunas and steam rooms, including accessible benches, turning space and door clearance. When saunas and steam rooms are "clustered at a single location," no more than 5 percent of the saunas and steam rooms, but no fewer than one, of each type in each cluster are required to comply with these requirements.
5. Swimming Pools, Wading Pools, and Spas
Sections 242 and 1009 of the new ADA Standards require hotels and other places of lodging to provide accessible means of entry into pools and spas, including pool lifts, sloped entries or transfer systems. The number of required accessible entries depends on the size of the pool. The Department recently clarified that only "fixed" pool lifts, and not portable pool lifts, comply with the new standards. The new ADA Standards do not address whether the access requirements apply to all pools and spas at a facility with multiple pools or spas.
In response to widespread concerns about the feasibility of immediate compliance (including the lack of manufacturing capacity for the required lifts), the Department of Justice has issued a 60-day extension until May 15, 2012 to implement the standards for pool lifts, and is considering a further extension of the deadline.
III. Guest Room Accessibility Requirements
The ADA regulations and standards also include new accessibility requirements for guest rooms in hotels and other places of lodging, but do not change existing regulations specifying the number of guest rooms that must be accessible. In addition, the regulations provide a new requirement for "dispersion" of accessible rooms. These requirements are subject to the "safe harbor" provision and are therefore applicable only to new construction and alterations, so long as the existing facilities comply with the prior standards.
1. Dispersion of Accessible Rooms
Pursuant to section 224.5, accessible guest rooms "must be dispersed among the various classes of guest rooms," and the place of lodging must "provide choices of types of guest rooms, numbers of beds, and other amenities comparable to the choices provided to other guests." An advisory in section 224.5 provides that "[f]actors to be considered in providing an equivalent range of options may include, but are not limited to, room size, bed size, cost, view, bathroom fixtures such as hot tubs and spas, smoking and nonsmoking, and the number of rooms provided." Where the minimum number of required accessible guest rooms is insufficient to allow for complete dispersion, "guest rooms shall be dispersed in the following priority: guest room type, number of beds, and amenities."
2. New Accessibility Features
In addition, section 224.5 requires at least one guest room to provide both mobility and communication features. However, no more than 10% of guest rooms required to provide mobility features that are also equipped with communication features can be used to satisfy the minimum number of guest rooms required to provide communication features. Thus, depending on room and feature configuration, a place of lodging may need to provide more accessible rooms than the minimum number set forth in the applicable standards.
IV. Potential Liability
These new and modified regulations and standards apply broadly to anyone who owns, operates, leases (or leases to) a "place of lodging." The ADA authorizes both government enforcement and private lawsuits to remedy alleged accessibility violations. In addition to injunctive relief to compel compliance, the government or private plaintiffs may be awarded attorney’s fees and costs. Class action litigation is becoming increasingly common in this area. In addition, although the ADA itself does not provide for monetary damages, many states have enacted companion laws providing for such penalties. For example, in California, the Unruh Civil Rights Act provides for $4,000 in minimum damages for each denial of access.
The new regulations impose significant new obligations on hotels and other places of lodging, including detailed requirements for reservations systems and, for the first time, potentially onerous accessibility requirements for recreational amenities such as swimming pools and golf courses. The majority of these requirements require immediate compliance (i.e., there is no safe harbor). As such, at a minimum, owners, operators, and landlords of such public accommodations should promptly:
1. Assess how the new regulations and standards may affect your business or facility;
2. Consider engaging an ADA accessibility consultant to inspect your facility, as well as your policies, procedures, and practices relating to the accommodation of individuals with disabilities;
3. Make immediate changes to ensure compliance with regulations and standards for which there is no safe harbor, including accessible reservations system and access to various recreational facilities; and
4. If you have concerns about potential liability, contact an attorney for advice on your litigation risk and appropriate preventative measures.
Gibson, Dunn & Crutcher’s lawyers are available to assist with any questions you may have regarding these issues. For further information, please contact the Gibson Dunn lawyer with whom you work, any of the following lawyers, or any member of Gibson Dunn’s Real Estate Practice Group.
Andrew A. Lance – New York (212-351-3871, firstname.lastname@example.org)
Michael F. Sfregola – Los Angeles (213-229-7558, email@example.com)
Peter S. Modlin - San Francisco (415-393-8392, firstname.lastname@example.org)
Benjamin M. Glickman - Palo Alto (650-849-5343, email@example.com)
Christine Fujita - San Francisco (415-393-8230, firstname.lastname@example.org)
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