Mr. Brewer III

ADA Compliance

The ADA and Your Responsibility as an Owner or Operator

By William A. Brewer III, Managing Partner, Bickel & Brewer

Co-authored by Aravella Simotas, Associate, Bickel & Brewer

In 2010, the DOJ announced that it had entered into a precedent-setting agreement with Hilton Worldwide, Inc. calling for state-of-the-art accessibility changes to approximately 900 hotels within the Hilton network. The deal, struck after a system-wide investigation of Hilton's operations, is significant because it is the first time that the DOJ required a hotel chain to provide current data about accessible guest rooms through its telephonic and on-line reservations system.

It is also the first time a hotel franchisor was compelled to ensure that all its franchised and managed hotels certify ADA compliance. These requirements highlight that the DOJ is expanding the scope of its application of the law. Therefore, owners and managers should be aware of their responsibilities under the ADA.

The DOJ's Findings - Going Beyond the Concrete to the Virtual

The Hilton agreement was reached after a 90-day investigation of 13 properties under the Hilton brand, including economy, mid-market and upscale hotels. In addition to identifying typical architectural and communications barriers at the properties surveyed, the DOJ found that Hilton failed to provide the mandatory number of accessible sleeping quarters and allocate the proper number of accessible rooms among available classes of accommodations. More importantly, the DOJ concluded that individuals with disabilities are unable to review the hotel chain's inventory of accessible rooms or make a reservation for such accommodations using Hilton's web-based and telephonic central reservations system.

As is common throughout the industry, Hilton accepts online and telephone reservations for the properties it owns or franchises. Hilton owns and operates its web-based and telephonic central reservations system, Hilton Reservations & Customer Care (HRCC) through a wholly-owned subsidiary, and requires all franchisees to accept reservations and prioritize reservations made through the system. Hilton launched HRCC over a decade ago, and operates nine contact centers worldwide that provide voice and Internet reservations and customer service to more than 100,000 customers per day.

When reviewed by the DOJ, HRCC was not user-friendly to persons with disabilities. The reservations system did not contain adequate data on the inventory of accessible rooms, permit individuals with disabilities to reserve rooms with specific accessibility features, or guarantee that an accessible room would be available upon a guest's arrival. Hilton agreed to make numerous updates to HRCC and Hilton's policies to make them compliant with the ADA, including:

• Provide specific information about accessible amenities at each Hilton property, such as roll-in showers, accessible tubs and visual alarms. The decree mandates that Hilton update HRCC regarding any material reconfiguration of room types;

• Reconfigure HRCC so that users receive real-time data concerning accessible room availability identified by room type;

• Revise Hilton's guestroom assignment policy to ensure that at least two, non-premium accessible rooms are available for guests with disabilities at all times;

• Remove from available inventory accessible rooms at United States properties that were reserved for a disabled guest through HRCC; and

• Amend Hilton's brand standards to the extent needed to implement these mandates.

Hilton also agreed to bring its web domain and all websites for its brands into compliance with version 2.0 of the Web Content Accessibility Guidelines (WCAG). These guidelines set forth recommendations to make web content accessible to a wider range of users with visual, hearing, cognitive and developmental disabilities.

The DOJ's focus on Hilton's virtual presence is seen by many as a clear indication that the hospitality industry's telephonic and online reservations systems and websites will be at the top of the government's accessibility compliance checklist in 2012.

Franchisors Are Now on the Hook for Non-Compliance of Franchisees

It is important to note that the Hilton Agreement evidences the DOJ's view that ADA responsibility exists for franchisors regarding their franchised hotels. In the past, franchisors that only licensed their brands, products and industry knowledge, but had no hand in operating the facilities, escaped the mandates of the ADA.

Hilton operates a system of more than 2,800 hotels throughout the United States under various trade and service names through either direct ownership or franchise license agreements. The company is now responsible for surveying and certifying that all the properties under its umbrella that were built after January 26, 1993, (the date the ADA became fully effective) comply with the ADA. This includes properties that enter into new franchise as well as management agreements, experience a change in ownership, or extend a franchise agreement for more than six months since that trigger date.

Any newly constructed hotel bearing the Hilton brand must also meet ADA standards, and Hilton will amend the standards it imposes on the properties it owns, manages or franchises to require that they comply. This is particularly important since the DOJ recently adopted new standards for accessible design.

The DOJ also required Hilton to retain a national ADA compliance officer to serve as the primary administrative contact for accessibility issues for all Hilton-brand hotels. That officer must oversee the implementation of the Hilton agreement and Title III of the ADA. In addition, each Hilton property is now mandated to designate an on-site ADA contact person responsible for addressing questions or complaints regarding the hotel's services, amenities, accommodations or facilities. Hilton will amend its brand standards to require that owners and operators provide guests with written notice identifying the on-site ADA contact person, and provide telephone numbers and the website address for filing ADA complaints with the DOJ.

Hilton was further required to implement an ADA training program for all employees whose essential job functions require them to interact with hotel guests, and a more comprehensive program for front desk employees, general managers and chief building engineers covering the proper assignment of accessible rooms.

The ADA was enacted to ensure full and equal access to public accommodations for Americans with disabilities. This means that hotels, which fall into the "public accommodations" category, must provide equal services and amenities to all guests. By shifting liability to franchisors, the DOJ has "upped the ante" for industry players with franchised properties - and they will have to deal with a new level of exposure.

Proceed With Caution - What This All Means for the Hospitality Industry

The Hilton agreement is a future look into ADA enforcement in the hospitality sector. The DOJ has primary jurisdiction to enforce the ADA and is casting a wide net, reaching franchisors and hotel websites. Since an ADA enforcement action could provide for civil penalties and significant compensatory damages, hotel investors, franchisors, owners, managers and operators should take notice of the following recommendations:

• Ensure that properties are inspected by a certified ADA compliance expert and remove any architectural and communications barriers that may be identified. If a new hotel is being constructed, or an old one is being remodeled, a compliance expert should verify that the project meets both local and federal codes;

• Audit reservations systems to ensure they are friendly to users with disabilities. Revamp online reservations systems to conform with version 2 of the WCAG;

• Conduct a thorough review of ADA policies, procedures and employee training programs. If a hotel operator does not have policies and procedures in place for serving guests with disabilities, create and implement them. The same advice applies to employee training programs;

• Guarantee that reservations for accessible rooms are held and that accessible guest rooms remain available until all other accommodations are booked;

• Franchisors should survey franchisees to ensure ADA compliance and amend brand standards as needed; and

• Investors should perform due diligence to verify that acquisition targets or hospitality investments comply with the ADA.

The Hilton agreement is a future look into ADA enforcement in the hospitality sector. The DOJ has primary jurisdiction to enforce the ADA and is casting a wide net, reaching franchisors and hotel websites. It is important for industry principals to recognize that ADA enforcement action could provide for civil penalties and significant compensatory damages.

Bickel & Brewer attorney Aravella Simotas contributed to this article. Simotas is an associate in Bickel & Brewer's New York office and member of the New York State Assembly, representing the 36th District in Queens.

Under Mr. Brewer’s direction, Bickel & Brewer has become renowned for its innovative handling of major disputes in a number of industries, including the hospitality industry. Not only has his work in this area changed the state of the law, but it also has resulted in the formulation of creative solutions to countless problems confronting the industry. The firm has represented hotel franchisors, management companies, owners, developers, and investors in many of the highest-profile matters in the industry. Mr. Brewer is frequently published on a wide range of legal and business issues effecting the hospitality industry. He is a member of several leading industry associations, including the American Hotel & Motel Association and the Academy of Hospitality Industry Attorneys. Beyond these associations, Mr. Brewer is active in a broad range of professional groups and philanthropic organizations. Mr. Brewer III can be contacted at 214.653.4000 or wbrewer@bickelbrewer.com Extended Bio...

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