ADA Lawsuits Are Exploding — What Hotel Owners Need to Know

ADA compliance is becoming one of the fastest-growing legal risks in the hospitality industry — and most hotel owners don’t even realize how exposed they are.

In this episode of Check-In with Bryan, Bryan sits down with attorney Lindsay Leavitt to break down what’s really happening behind the surge in ADA-related lawsuits across hotels in the U.S.

From service animal policies to accessibility requirements, website compliance, and franchise responsibility — this conversation dives into the real-world legal challenges hotel owners, operators, and developers are facing today.

Lindsay shares insights from defending hundreds of ADA cases, including:

• The most common ADA violations hotels get sued for
• Why many lawsuits come from “serial plaintiffs”
• The difference between service animals and emotional support animals
• How ADA applies to hotel websites and online booking
• Why franchisees are still fully liable (even with major brands)
• The costly mistake of waiting too long to involve an attorney
• How to fix “low-hanging fruit” issues before they become lawsuits

If you’re involved in hotel ownership, operations, development, or asset management, this episode is essential listening.

👉 Make sure to subscribe for more conversations with the top minds in hospitality.

#Hospitality #HotelManagement #ADACompliance #HotelOwnership #HospitalityIndustry

Transcript

SPEAKER_00 0:39

Welcome back to checking with the episode of Check in with Brian is brought to you by Reliance Hospitality. Hospitality Consulting, Project Management, and Business Process Outsourcing built exclusively for the owner's side of the table. PIPS, renovations, budgets, brand compliance. We manage it all so you don't have to. Learn more at reliancehospitality.com. Welcome back, everyone, to this week's episode of Check In with Brian. I'm your host, Brian Fish, and we are here again at Nextpace Studios at Nexpace here in Scottsdale, Arizona. And we are going to be talking about something today that every hotel owner needs to understand, but doesn't fully understand it until they get served with a lawsuit or a lovely complaint from a guest or any other consumer, honestly, off the street potentially that has an ADA complaint. Whether you're in the middle of a PIP planning a renovation or make sure your property isn't sitting on hidden liability, this is an episode for you. So my guest today is someone that I absolutely love, Lindsay Levitt. Full disclosure, he is our attorney. So the stuff I read at the very end, thank him for that. He is currently the director at Fenmore and Craig here in Phoenix, Arizona. And he knows the space inside and out when it comes to these ADA lawsuits. We're going to dig into what owners owners are getting wrong, what the brands won't always tell you, and what you should be doing right now to protect yourself and your guests. And part of that honestly comes down to a quick Google search. When we come back, we will sit down with Lindsay and learn all about ADA and also potentially find out just how good of a client I truly am. Very good attorney. Very good attorney. Lindsay Levitt with Fen Moore and Craig. He's a director now. You went from being a partner to a director. I'm a really big deal. You aren't. I don't know what to say. Yeah, no. I feel like there's like your pictures hanging places. Probably not, but we'll we'll pretend that it is. But we've known each other for I was trying to figure this out the other day. It's been at least since 2021 or 2022. I think it's before that. I think it's pre-COVID. Was it pre-COVID? Yeah. And we've had some great success together. I think you're fantastic. Some people that are listening to this or watching this, they know that I can be difficult at sometimes.

SPEAKER_01 3:15

You can be a little bit of a diva, that's for sure.

SPEAKER_00 3:18

Yeah, that is the word.

SPEAKER_01 3:19

You're like the Mariah Carey of uh hospitality.

SPEAKER_00 3:21

Yeah. But for whatever reason, you have a way of putting me in my place like very quickly. And I don't know if it's because you're Canadian or you just have that skill. Uh it could be both. I don't know. Yeah. We'll see. But I'm able to identify Canadians now in the wild just from working with you. So I know we're going to jump into a lot of information about ADA. Everybody's curious about it. And if they're not curious about it, they should be curious about it. Overall, you mostly represent hospitality clients.

SPEAKER_01 3:47

A large portion of my practice is representing hotel owners and operators, some franchise, uh, but mostly the owner-operator who owns three to four hotels, and that's kind of his bread and butter.

SPEAKER_00 3:57

That the big franchise war is coming after sometimes in some cases. So what do you think is the number one mistake hotel owners make when it comes to not seeking legal advice?

SPEAKER_01 4:08

From my experience, hotel owners are often used to coming up with the most cost-effective solution. And I think sometimes they don't seek legal counsel until after it's until it's too late. And so with my clients, I try to say, hey guys, like it's the classic phrase, like an ounce of prevention is worth a pound of cure. Call me before you sign the contract. I'll take a few minutes and review it instead of afterwards when we need to enforce it or when you're being sued under it. That type of thing.

SPEAKER_00 4:39

Well, it's like I gave a talk at AHOA. I was on a panel last year at AHOA, and I told all these owners in the room, if you're going to spend any money, hire an attorney to review your management contract. And I got calls from some management companies that were in the room because I also gave some other advice about things that people should negotiate on. Sure. Um, and I was very clear, and you'll appreciate this because one of them specifically is like something that you and I did do together. I told the owners, I said, Look, I have litigated this, these contracts. I know what's in them. Yes. And I'm telling you, these are the things that they will come in with. Like you think it means this, but it doesn't. It actually means this. Like, pay for it before you get yourself locked into this agreement. Like there will be a divorce. You need to think about that.

SPEAKER_01 5:23

Yeah, it's funny. Like the classic dad joke is they really should be called management disagreements because the only time anyone ever looks at their hotel management agreement is when there is a disagreement, right?

SPEAKER_00 5:34

It's the only time they look at their franchise agreement.

SPEAKER_01 5:36

Yes, or their loan documents or all that kind of stuff. That could be a whole other podcast.

SPEAKER_00 5:44

So I do have to remind everybody today, everything we discuss is not meant to get provide any legal advice. It's uh purely informational purposes for it's not really entertainment, but I'm supposed to say it's entertainment. But uh, you are just here giving your your honest opinion from your legal background, and you should seek legal advice on any of these things we discussed today. Let's hop into ADA. It's a big deal. I was telling you before we started filming, we were talking about service animals. There was a situation that did go viral on TikTok. Lady was checking into a Sheridan hotel, and the hotel would not allow her to check in with a service animal at all. It was a dog. And you know, she her biggest thing was she didn't get her money back. And she also knew that she was being discriminated against, but she doesn't have the resources to go do anything.

SPEAKER_01 6:31

Yeah.

SPEAKER_00 6:32

But the reality is service animal is really just touching the surface of ADA compliance, correct?

SPEAKER_01 6:38

Yeah, it's just one, you know, niche aspect of ADA compliance for the hotel industry. But I'm happy to chat about service animals if you want to start with that.

SPEAKER_00 6:46

I mean, if you want to give a quick rundown, like because service animals, especially in business hotels that are not pet friendly, sure. They see a dog come in the front door. And I and I've been there, the hair on the back of your neck stands up right away, and it's like, oh god. But the reality is you have to my point of view has always been if they say it's a service animal, what I don't have any ability to do anything.

SPEAKER_01 7:07

Uh, you're mostly right. So when when they say it's a service animal, your front desk reception, whoever's ever doing check-in, is allowed to ask two questions. And the first question is has this dog or a miniature horse, but usually they're dogs, has this dog been trained or is it is it required to help with a disability? And if the person says yes, then you say, what task has this dog been trained to perform? And they give some sort of answer. And if they can provide an answer, even if you're a little skeptical, I err on the side of, okay, it's a service animal. And you would treat it as if you the person was coming in with a wheelchair, because it's the same thing.

SPEAKER_00 7:47

Yeah, you're not going to take their wheelchair away from them.

SPEAKER_01 7:49

You wouldn't, you can't say, sorry, we don't allow wheelchairs in here. Right. And so that's what a service animal should be treated as. It's not a pet, there should be no extra fee or a pet fee. However, if the service animal is acting up, if it's jumping on people, if it's defecating in the rooms, if it's barking at night, you can treat it as a pet and you can remove them from the property.

SPEAKER_00 8:08

Now, if I had a service animal, a miniature horse. Little Sebastian. Yeah, like that's increasing. That I just it blows my mind. I need to meet one of these. Are those questions that as part of the whole process of getting a service animal that you're aware people can't ask you? So they shouldn't be offended or be taken aback that you would even dare ask the question?

SPEAKER_01 8:31

Yeah, it's a question that those two questions that I just said are the questions that are allowed to be asked under the law. That's it. And so if those questions are asked, it shouldn't cause some sort of reaction or offense to the person because they know those are the questions that the hotel's allowed to ask.

SPEAKER_00 8:45

But still, and uh coming from the front office, I would would agree to if you do ask those questions, even if you think that they're full of shit. The reality is just go ahead, you've checked the box.

SPEAKER_01 8:56

Yeah.

SPEAKER_00 8:57

And now let's move on, because otherwise you're just gonna constantly it's honestly not worth the fight.

SPEAKER_01 9:02

And I've had some hotels put up the fight, and probably rightfully so, but then they get a complaint and an investigation from the attorney general, the state attorney general's office or whoever investigating discriminatory practices.

SPEAKER_00 9:14

So ask stuff you don't need to deal with. Yeah, it's you don't need to deal with right now. Can they do that? Can they ask the questions in the form of like having them fill out a form or just verbal?

SPEAKER_01 9:25

No, don't have them fill out a form. Don't ask for paperwork, don't ask for a certificate, because there really isn't like a certificate for a service animal under the ADA.

SPEAKER_00 9:32

Right.

SPEAKER_01 9:33

That's just not a thing. And so ask the questions, whatever the answers are. Unless the answers you can tell are totally nonsense, then it's let the allow the person to and treat it like a service animal.

SPEAKER_00 9:44

And then just real quick, like there is a clear difference though between a service animal and an emotional support animal.

SPEAKER_01 9:51

Yes. Under the ADA in the hospitality uh industry, emotional support animals can be treated as pets. Service animals have been trained to perform specific tasks for a certain someone's disability. Emotional support animals haven't. And so if someone says this is my emotional support dog, hamster, snake, whatever peacock. Sorry, that's a pet. Yeah. Uh dogs that have been trained to perform specific tasks for specific disabilities, those are service animals. Those are like wheelchairs. Emotional support animals are not, they're pets.

SPEAKER_00 10:24

Now, ADA is governed by Title III. Correct. Or the American Disabilities Act is Title III. How do the two go together?

SPEAKER_01 10:32

Okay. So the ADA is a federal law that was enacted in the early 1990s. It's comprised of three titles. Title I governs employer and employee relationships. We're not talking about that today. Title II governs governmental entities. It's about programs and services that cities and towns and states offer to the public. We're not talking about that today. We're talking about Title III. Um, that's for public accommodations and the requirement that they allow people to experience the guests, sorry, experience the goods and services that those public accommodations provide.

SPEAKER_00 11:08

Is there a title four? What's that? Is there a title four? No, Title IV. Okay, so it ends at Title III. Ends of Title III. So in Title III, what are the what are the types of situations you typically are seeing these days owners are coming to you about, or that they're getting served lawsuits for failure to comply?

SPEAKER_01 11:25

Sure. I've probably defended, I think I tried to count it a week ago in prep for this podcast. I think I've defended more than 400 hotels in ADA lawsuits in the past eight years. The vast majority of those are under Title III, and it's for failure to provide or failure to remove barriers to accessibility. And so, for example, uh a serial ADA plaintiff will come into your parking lot and say, hey, your accessible parking sign doesn't meet the requirements. You don't have an accessible pathway from your handicapped parking into the building. I went to use the restroom, and there's the restroom is not compliant with ADA standards regarding, you know, accessibility. And so those are the lawsuits that are happening. They're happening all over the country. It's the fastest growing area of litigation in the country. Thousands of lawsuits are being filed uh every year, typically by only a handful of serial plaintiffs.

SPEAKER_00 12:25

And in a lot of cases, are the is the plaintiff even going in? Like, were they actually there to really take advantage of the services of the business?

SPEAKER_01 12:34

Or are they just Yeah, I can't speak to every plaintiff. Right. But in my experience, most serial ADA plaintiffs are refer to themselves as what's called as testers, where they're going to the property not necessarily to actually stay at the hotel. They're going to test it for ADA compliance. So they'll go in, they'll take photographs, they bring a tape measure, and they say, Oh, this uh, you know, the in the bathroom, the handles next to the toilet, the accessible handles next to the toilet are not fully compliant. The toilet is too far away from the wall. Uh, you know, I can't move my wheelchair in here, my knees bump the underside of the of the lavatory or sink area, and they file a civil rights lawsuit under the ADA.

SPEAKER_00 13:18

So now go with me here. I'm I get the whole tester thing, but in some cases, just knowing how hotels are constructed and dealing with a lot of like conversions, and a lot of hotels in the country are, you know, I would imagine may have been built pre-ADA. The room may have been laid out, like the bathroom, for instance, may have been laid out 35 years ago. It's been remodeled, but they didn't change anything and nobody's really reevaluated it. So maybe that it is off from a measurement standpoint. Yeah. Like how do you deal? How is that like every time I go to modify a hotel, should I be checking those measurements and changing it? Or yes. Okay.

SPEAKER_01 14:04

Even if your hotel was built pre-1990, every time you renovate your hotel or even a section of your hotel, that portion of the hotel that you renovated must now become compliant with the ADA's new standards. And the latest standards that came out came out in 2010. They went into effect in 2012. But if you, let's say, restripe your parking lot, it needs to be brought into ADA standards. If you do a reno and a gut or a PIP that requires you to do all of the uh redo all of the bathrooms, including accessible bathrooms, those need to be ADA accessible when you're done with it.

SPEAKER_00 14:39

Now a lot of the brands require an ADA evaluation or study to be conducted by a third-party consultant when you're executing a franchise agreement.

SPEAKER_01 14:49

Yeah.

SPEAKER_00 14:50

They don't the brands in many cases don't do anything with it.

SPEAKER_01 14:53

Yeah.

SPEAKER_00 14:54

But they require you it's on file.

SPEAKER_01 14:56

Sure.

SPEAKER_00 14:57

So does that like as a hotel owner, if I've had one of those inspections conducted essentially, and now it's on paper, I knew it was an issue. I wasn't doing any construction. Does it does that report could that potentially come back to haunt them later?

SPEAKER_01 15:14

Maybe it doesn't have any, it doesn't create any increased liability if you knew that there was an ADA violation, but you didn't correct it. Because under the ADA, the only source of relief that a plaintiff can seek is injunctive relief and a reimbursement of their reasonable attorney fees. And what I mean by that is if you're in a wheelchair and you come to my hotel and you say, hey, this ramp leading into the entrance is not ADA compliant, I've been discriminated against, my civil rights, your civil rights have been violated. I want to sue for a million dollars because emotionally I'm so the ADA doesn't allow that. The ADA says, no, Brian, you can go to court, you can ask the judge to uh issue an injunction, which is an order requiring my hotel to come into compliance with the ADA. And if you have a lawyer, your lawyer can seek a reimbursement of the reasonable attorney's fees that they incurred on that. But that's it. There's no private damages. So whether you knew about a violation and didn't do anything about it, it doesn't matter. The bottom line is injunctive relief and paying attorney's fees. That's that's the penalty.

SPEAKER_00 16:17

So these testers we were talking about, if it's not a legitimate tester and they're just doing this as a matter of a way to raise funds, like how much how much do they typically get?

SPEAKER_01 16:30

They try to squeeze as much money as they possibly can.

SPEAKER_00 16:33

Okay.

SPEAKER_01 16:33

And so it's been my experience that with most of these testers, they're not that concerned about the actual accessibility of the hotel. They'll find one or two little areas that you need to fix that you need to remedy essentially and bring into compliance. But really, it comes down to the money. And those, and that's where most of the dispute is. Because I can tell you, and I probably shouldn't say this, but I will, there's almost no hotel in America that's fully compliant with the ADA. It's almost impossible. There's almost I can guarantee it. There's almost no building in America that's fully compliant.

SPEAKER_00 17:10

Like even public buildings are not like governmental buildings.

SPEAKER_01 17:13

Yeah, do you want to hear a funny story about that? Sure, yeah. I don't know if it's funny, it's more like ironic, but I flew to Boston to represent a hotel in an ADA case. And we were having an evidentiary hearing, and the plaintiff, who was in a wheelchair, was there, and I called him to the stand because I wanted to cross-examine him. And it was a brand new federal courthouse that had only been constructed a few years earlier, and he couldn't get on the witness stand because the witness stand had stairs leading up to it. And the federal courthouse wasn't compliant with the ADA, and so he couldn't access the witness stand. And so that was the irony of this hearing.

SPEAKER_00 17:54

What did the judge say? Did he or she like see the irony in that?

SPEAKER_01 17:59

I didn't ask the judge if they saw the irony in it, but the judge allowed the plaintiffs to stay at the witness table, and I had to cross-examine the plaintiff plaintiff while he sat at the witness table because the witness stand was not uh accessible.

SPEAKER_00 18:14

Well, I guess it helped your argument. Everybody like not sure it did. Oh really.

SPEAKER_01 18:18

But yeah, so I mean, but it's a good indication. That's the thing. Like it's a good story for a podcast, but it's not necessarily like a legal defense, like uh, hey judge, I know you are, but what am I, type thing that doesn't work.

SPEAKER_00 18:29

Yeah, but it just goes to show, like, even a brand new building built today, it's almost a you're gonna miss something. Yeah, and even if it's uh my thing is even if it's on the plans to because they'll review it during the planning phase to make sure it meets like that there's like 36-inch clearance behind like the front desk or whatever, if it's a pod situation. But we also know that when you go back to renovate a hotel and we order like as built drawings to be done, yeah, if they weren't done originally, you'll find the measure the measurements are rarely ever exact to the plans. Well, so they may have on paper, it may have met all the requirements, but if nobody actually was checking it during construction, and then sometimes it's off by a half an inch or something, it's not big, but yeah.

SPEAKER_01 19:16

And what I've found, Brian, is that the contractors are good at making sure that a building is up to code, right? And they look at the building code. And oftentimes the ADA mirrors a building code, but a lot of times it doesn't. Yeah. And if they're gonna prioritize one or the other, the contractor is more familiar with a building code than they are with the ADA accessibility requirements. And oftentimes people that come out from the city before they give their, you know, sign-off and approval and certificate of occupancy, they aren't super qualified under the ADA to know whether it's compliant as well. So oftentimes there's a false sense of security that because it's a new hotel, because it's a newly renovated hotel, because the city's signed off and gived you giving you a certificate of occupancy that it's compliant, oftentimes that doesn't mean that it is.

SPEAKER_00 20:02

It's interesting you say a false sense of security because I also like when opening a hotel, you know, like in Texas, opened a hotel, they came out to do the walkthrough to issue the certificate of occupancy. They never asked, they never checked one ADA requirement. Yeah. So I feel like it's the one, which is probably why it's such a it's big business right now, is I don't think that even in a lot of jurisdictions, I don't think that it's top of mind, which then makes me wonder like who is like who are the police of this?

SPEAKER_01 20:32

Well, it's a federal law and it's a federal statute. So the Department of Justice is responsible for enforcing it. Right. So when you get a podunk city inspector to come out, you know, he's not a federal officer.

SPEAKER_00 20:44

And so he's and that jurisdiction is not going to get the complaint. Yeah. So the clients that you've been representing against some of these plaintiffs, if it is accurate that they don't meet it, like how how have you found your clients to be when it comes to like remedying the situation? Yeah, most of the or do you find that the client half the time is not really at fault? It's just uh Yeah, that's a good question.

SPEAKER_01 21:09

The the first wave of ADA litigation cases that I defended here in Arizona, there was a guy who at first he was the lawyer, then he got disbarred. And I actually testified at his disbarment hearing, and then he became the plaintiff himself. Those, for the most part, were not his son represented him, right? Yeah, there was a father and son duo. They both have the exact same name. They started out together filing, they almost filed 2,000 ADA lawsuits in Arizona, and then uh we were able to kind of get most of those consolidated and thrown out.

SPEAKER_00 21:42

Yeah.

SPEAKER_01 21:42

When it comes down to it, like if anyone goes into your hotel, they could find an ADA violation. They could. So the question is what are they going to do about it? And if they file a lawsuit, how do you get rid of it? Is there an ADA violation? Sure. Does it actually infringe on the civil rights of this particular plaintiff maybe, but probably not. But the the problem with ADA cases is that typically only the lawyers end up winning. And attorneys' fees in these cases become the tail that wags the dog. Which is the most frustrating type of case to litigate. And so my goal is I say to the client, hey, we can win this case. We probably could, but you're going to spend more money defending it and winning it than you would if we just settle it as quick and cheap as possible. And that's unfortunately the economics that's so frustrating about ADA cases.

SPEAKER_00 22:36

And I know the most frustrating thing about having a business.

SPEAKER_01 22:39

Yes.

SPEAKER_00 22:39

And I know a lot of times that's the the reality is it's cheaper to pay them off. Yeah I don't think pay them off is the legal term for it, but to just settle it than to run. But how many like well, because you and I have personally had this conversation I'll like at sometimes it's the princip the well I think I have been the one to tell you this before. It's like I'm more pissed about the principle of it and I'm like well no they should do this. And you're like, okay, well you don't have the money to fight on the principle. Like what do you want to do about it? Like how many people are like that where they're just like no like I well I want them to you know I want to fight. I want to fight them.

SPEAKER_01 23:16

You know I do have some clients who have deep pockets and they have fought and they have been successful and we've got cases thrown out and we've achieved really good rulings. For the most part my goal for my clients on almost every case where I defend is hey, how can we get you out of this case as quick and cheap as possible? And that includes my attorney's fees because if you pay me a hundred grand and I get the case thrown out, great. But if we could have settled it for 4500 bucks six months earlier, that makes a lot more sense, right? Yeah. And so some clients don't care about attorney's fees and they just want to win. Okay, great, let's go win. Uh some clients say how do we get out of this as quick and cheap as possible. And so that way it's like how do I lose this case as quick and cheap as I possibly can including my attorney's fees and factoring in the other guy's attorney's fees. And that's kind of the strategy that I've been able to kind of develop over the past few years. And we've had some really nice success where plaintiff's lawyers will come in they'll file a bunch of lawsuits in uh this happened in Colorado. So I was I litigated a bunch of cases in federal court in Colorado. Plaintiff's lawyers came in and were demanding$20,000. And you're like that's a lot of money but it's also a lot of money to defend these cases. And so we ended up just stipulating that we'll we stipulated to a judgment and said we'll fix the violations of the property but we're not stipulating to your attorney's fees. Go to the court and apply for your attorney's fees and we're going to challenge it. And they did and we challenged it and the court said the court agreed with us and said yeah these are copy and paste lawsuits. Really no substantive legal work was done the the hotel stipulated to the injunction to fix to remedy the violations why do you think you're entitled to$20,000 in attorney's fees and how did you rack up$20,000 in attorney's fees well and the the what they realize is it's hard for them to justify it at the end. And so the judge ended up giving them a thousand$1500 and all of a sudden these ADA cases weren't as profitable to these lawyers and they packed up shop and left Colorado because they realized they can't make any money there.

SPEAKER_00 25:27

So are those attorneys usually coming from like a PI for a personal injury like firm or where do they Yeah oftentimes they're uh they're just plaintiff's lawyers who believe that ADA litigation is a way to uh generate revenue pretty quickly and easily and and many times it is but in this particular case it was a law firm out of Florida that whose client was based in Michigan and then they ended up suing a couple dozen hotels in Colorado trying to you know squeeze them as as best they could. So one thing that I have been hearing more about at conferences and just and I've there's been some things in the news but I don't see it covered very often is you know we're obviously in the age of well we've been in the age of the internet for a long time websites. Yeah there is some well there's some rules around ADA compliance with websites as well. Can you Yeah let me break that down I am confused like is it the information you're putting on the website is it how the website's designed like good questions.

SPEAKER_01 26:31

Let me do a quick two minute spiel on this okay so the ADA obviously was enacted before the digital age and so the when the internet started coming around the question that courts had to grapple with was is a company's website the website itself a place of public accommodation we know that the actual physical business is but is their website where you can look at the their business you can order a product off it now is that website itself a place of physical accommodation courts across the country have not agreed on that entirely but the trend generally now is that if a business has a brick and mortar location as what its website is an extension of that brick and mortar location. So its website itself is deemed a place of public accommodation therefore its website has to comply with the ADA businesses that have no brick and mortar location no physical location that they sell products out of and only sell via the website many courts have found that that website is not a place of public accommodation. So if you have even though it's like widely available to the public yeah and so that's the difficult part. But now fast forward okay so for hotels specifically there's two parts to your website that they need to be compliant with under the ADA the first part is codified under a regulation called let me think of it here 28 CFR 36.302e just rolls off the tongue right and what it says is that a hotel must identify in reasonable and sufficient amount of detail the accessible features of their hotel property so that a person who has a disability can go on a hotel's website and say, okay, I'm looking at the different accessible features of the property this hotel looks like it meets my accessibility needs so I can go there. So for example every hotel on its website on its booking website needs to list a dozen or a couple dozen features of the property that are accessible. Hey we have a pool lift at our pool. Hey we have accessible bathrooms pool lift was big business there for a little while pool lift was ground zero for ADA litigation. That's what everyone started with and now you go to almost every hotel at least that I go to and they all have pool lifts now because they've all been sued for but if you can go on a website if someone in a wheelchair can go on a website and say okay it says they have accessible parking it says they have accessible entranceways it says they have accessible bedrooms guest rooms it says they have a pool lift all right this property looks like it would be uh you know uh fine for me to go there and visit and stay that's what a uh every hotel needs to have on their website.

SPEAKER_00 29:31

So that's the first part. Okay.

SPEAKER_01 29:32

That's the first part.

SPEAKER_00 29:33

Which seems very easy like in most cases that I don't even know a hotel if you're a franchise location that's automated basically at this point.

SPEAKER_01 29:42

Well the litigation has come from that I've defended hotels in is how many features that you list is is sufficient. Okay. And so uh I've defended clients on hotel clients on whether the description of the accessible features is sufficient and meets the reasonableness standard under the provision. It's dumb like it's a dumb thing to litigate but uh we've prevailed on that on many parts. But it's better to err on the side of being uh too detailed on the amount on the number of uh accessible features at your property also in that specific code is instructions to the hotel on how to reserve accessible guest rooms for example those rooms should be set aside for people with disabilities however if every other hotel room in your hotel has been booked you can then allow those accessible guest rooms to be reserved to individuals who don't have disabilities so long as every other room has already been booked, that type of thing. It also provides that you have to require and train your staff on complying with that regulation on how to handle folks who have disabilities who come in and ask questions. And so you want to provide proper training to your staff on how to book people in accessible rooms, things like that. So that's like on your website itself what accessible features have to be listed. The other part is more just generally is your website accessible to someone with a visual impairment someone with a visual impairment at home typically has like screen reader software that they've downloaded to their you know phone or personal computer and is your hotel's website compatible with that screen reader software and that's where something called the web content accessibility guidelines, WCAG guidelines come into play. I don't see those those lawsuits as much against hotels. It's more against hey I went on your on your website your company's website and I wanted to order something but I couldn't because my screen reader software wasn't compatible with your website and so I couldn't I've been denied access to the goods and services that your business is offering and therefore I've been discriminated against under the ADA.

SPEAKER_00 32:00

Which I know which makes sense now like so when you're designing a site like you have to put captions in that don't that you and I wouldn't see but it's for the screen reader software.

SPEAKER_01 32:09

Yeah there's a whole like describing what they would be there's a whole host of standards but the problem Brian is that the Department of Justice who's responsible for enforcing the ADA hasn't come out with its version of like accessibility standards for a hotel when you're walking through a hotel. Right. You know what the what the slope of the ramp has to be you know how far the you know the the the bars have to be from the from the toilet and and on grab bars. The Department of Justice hasn't come out with a list and said here's what your website needs to have in order to be fully compliant with the ADA and make it accessible to someone's visual impairment. So you're like how am I supposed to comply with the ADA when the Department of Justice hasn't even issued the guidance.

SPEAKER_00 32:57

Issued guidelines. Yeah and so most courts And then it's because it's computer like things update like there's updates to stuff maybe your software is out of date.

SPEAKER_01 33:06

Yeah so it can't read the new so most courts have said well if the Department of Justice isn't going to provide us any guidelines to know whether a website is compliant or not, we're just going to adopt these the WCAG web content accessibility guidelines. I think it's 2.1 now is kind of the prevailing standard. And so if you're designing a website where you can sell goods and services, you have a brick and mortar store, whoever's designing your website should have access and know what these web content accessibility guidelines are and they should be compliant. If if you're not sure there are a bunch of uh third party providers that specialize in web content accessibility um standards and things like that.

SPEAKER_00 33:49

Make it that way compliance yeah yeah now one thing that I hear from hotel owners and it seems to be a thing I'm curious if you hear it from some of your clients or that just in general is if they're at a if they're a friend like independent hotel owners seem to understand like they're kind of at risk of everything just because they have nobody else. But there does seem to be a misunderstanding in the franchise community sometimes where the franchisee thinks that they don't have to worry about ADA really because they you know are a franchise of and with IHG or Hilton or Marriott or Sinesta and you know they're inspecting and they're doing all these things and they run the website that we feed the data into. Right. And so the franchisee thinks that they don't need to really worry about ADA is that a is that an accurate statement or false?

SPEAKER_01 34:40

It is a false statement. And I've actually litigated this issue a bunch of times. If someone comes to your hotel property and identifies barriers to accessibility at that property the slope the ramp the bathroom the counter whatever it is that's the responsibility of the franchisee. If a serial plaintiff goes in your website and says hey you don't have the list of accessible features on your website that is required under that regulation I provided you the franchisee is liable unless the franchisee has gone to the franchise and said here's our 20 our list of 25 things 25 features of the property they're accessible. We need you to update the website and if the franchiseor doesn't do that then the franchise is liable but otherwise the franchisee is liable for that. The bottom line is the franchisee should assume that when it comes to ADA liability they're on the hook for it.

SPEAKER_00 35:35

They're not going to get bailed out by the franchise nor will they get bailed out more than likely will not get bailed out by their insurance carrier either.

SPEAKER_01 35:44

Yeah I'm finding that most insurance policies do not cover ADA accessibility claims either for the website or for physical barriers to accessibility at the property. Some have and I've seen and I've been retained by insurance companies who picked up coverage and I'm like huh I'm not really seeing it but that's fine okay so I don't think that hotel owners should assume that their insurance carrier will cover an AD claim and even if they do when you look at your deductible at five 1025000 whatever it is oftentimes these cases can be resolved for less than what the deductible is so is it even worth filing a claim right when it just jacks your insurance rates up and then you have to pay the 1000 deductible and then the insurance company writes a check oftentimes I mean going back to your original yeah your other your original point of you know the cost of yeah if you're gonna fight it it's gonna cost you money you might as well just write a check.

SPEAKER_00 36:45

So and I think a lot of times people don't realize people will go away for I think they think you say settle and the thing is they think that you're looking like six figures, but a lot of times people don't they're not looking for six figures.

SPEAKER_01 36:59

They're good with well a smaller amount of money on an 88 case they're not allowed to keep six figures because the only money that it changes hands in a settlement is to reimburse the plaintiff's lawyer for their reasonable attorney's fees. And so that's why our goal is let's end the case as quick as possible. Let's stipulate to agreeing to fix the violation and then let's go to the court and have the court rule on what is a reasonable attorney fee for a copy and paste probably came from Chat GPT potentially.

SPEAKER_00 37:27

Are there any safe harbor provisions that exist with the ADA if somebody hasn't renovated their building so I think what you're asking me are what are like the defenses that a hotel owner has let's say it's an older property. Yeah say it's on like the historic register okay so it's a historic building maybe there's been no structural changes so they've not been required to get any pull permits or do anything. Sure.

SPEAKER_01 37:52

All right so I'm actually litigating this right now because I've got a couple clients on the East Coast that are some of the oldest and most historic lots of old buildings on the East Coast. And the the two that I'm thinking of are some of the oldest and most historic hotels in America. And they're actually listed on like the historic hotels of America registrar or whatever. And so the ADA says if your hotel is deemed historic and it's on that list of historic buildings of America or whatever, then the ADA does not require that a historic property remove historic features from the property in order to comply with the ADA. However the hotel still needs to do it's not a get out of jail free card on every possible barrier to accessibility. But if the barrier to accessibility that you'd have to remove would affect the historic nature of the hotel, then that is like kind of a a grandfather you're grandfathered in and that's an exemption to complying with the ADA. So for example, I represent a hotel on the East Coast that has this beautiful historic front desk that's made of solid like oak wood or whatever. And it's it's too high. Oh it's one of the old bank tellers yeah and so the ADA says hey you need to have a lowered section for someone in a wheelchair to have access and we're saying this this check-in counter has been part of the hotel for a hundred years and it's this beautiful piece of like solid wood and it would cost hundreds of thousands of dollars to remove to carve out and create like his so the ADA doesn't require that we rip out this historic feature of the property but they say you need to provide an alternative solution. So we put a table right next to that you know check-in counter that is ADA accessible and it's called the you know ADA check-in table and if someone wants to go check into the hotel they can go to the table and receive service there. So that's an example. But just because your hotel is old doesn't mean you don't have to comply with any aspect of the ADA. Right.

SPEAKER_00 39:56

You need to make an effort.

SPEAKER_01 39:57

Yeah it's not a it's not a broad brush that you can use like anything else if you need to try to do something to have a good argument. If you do nothing and if you renovate any section of that historic hotel the renovation needs to that area that was renovated needs to comply with the ADA.

SPEAKER_00 40:15

But when you say renovate are we talking if it's a structural renovation? If it's just cosmetic am I still if it's just cosmetic then you're okay. Okay.

SPEAKER_01 40:23

But if you're ripping out walls and tearing down things then whatever you redo has to be compliant with ADA.

SPEAKER_00 40:29

Right.

SPEAKER_01 40:30

And again there are so many examples and exceptions and exceptions to the exceptions that I can't get into them here.

SPEAKER_00 40:35

Yeah I'm just kind of giving general information well I would say like in most cases there's probably you could probably have 10 cases and have 10 different defenses of the same of the same type of thing right like each situation's different every building's different the people at play are different.

SPEAKER_01 40:51

Yeah and the tough part is is that the only thing more expensive than defending an ADA case is hiring a lawyer to defend an ADA case who doesn't have experience defending ADA cases because there are so many little niche exceptions that those of us who have been around and know enough can save a defendant so much money where a lot of general litigators that I've seen are like, oh yeah, I'm a general litigator I can come in and do this. And it's just a world that they're not super familiar with.

SPEAKER_00 41:20

Yeah.

SPEAKER_01 41:20

And they've spent 20 grand kind of educating themselves on what to know but by then the other side's also spent 20 grand and now your ability to get the case resolved yeah because the other side's racked up 20 grand in attorney's fees, it's so much harder to get it resolved. And ultimately the client at the end of the day is the one that has now paid to educate the you're paying your lawyer 20 grand you're paying the other lawyer 20 grand before you know it you're like man I could have settled this for 3500 bucks if I had someone that knew what they're doing from the start.

SPEAKER_00 41:44

Right. Top things that you would give anybody right now just to avoid any type of ADA litigation.

SPEAKER_01 41:51

Yeah there's actually some really good resources online. And so if you just if a hotel just googles and downloads like ADA hotel accessibility standards it will come up with a list of like 75 things and just you don't need a law degree and you don't need to be a general contractor to look at that and say okay my on-site maintenance guy with a with a screwdriver and a hammer what could he fix? And if you're trying to avoid getting sued fix the low-hanging fruit the height of your uh accessible parking sign in the parking lot you know go into the bathroom and fix some of the grab bars and make sure that they're properly compliant 80% of the of the ADA litigation cases I defend are just low-hanging fruit violations that anyone could fix with a screwdriver and a hammer and nails, that type of thing. And so go through and do that. You'll also the website there's no excuse not to just have your website features listed on there. But just go through that list so you can download online and look at the low-hanging fruit and figure it out. Just do the things you know you can do. Do the things you know you can do and then when it's time every seven years when you're getting your parking lot repaved, restriped, ask the contractor hey, I want to make sure that this is eight that when you leave here and I've paid the bill, this is ADA compliant and make sure that your contractors and subcontractors are aware of the ADA compliance standards when they're doing little ranking most of them are and they are more most of them they're more educated.

SPEAKER_00 43:22

Most of them do not I feel like they actually they'll they're used like hey like they're getting better you got to do this and this and this but they're getting better. Yeah if something changed I guess they might not know.

SPEAKER_01 43:31

I think because ADA litigation has become so hot and so prevalent over the last 10 years right contractors are more aware now that this is an issue that they need to be aware of clients are asking so yes I mean the one thing I'll suggest also to really any public accommodation spot is if you're replacing like the like toilet paper dispenser in it in a stall so often I go in and I'll see like they've taken the old one off and the new one is put like six feet off the

SPEAKER_00 44:00

ground, which for a normal person is also too high. And it's like, how would you ever expect somebody in a the eight inch stall to reach that?

SPEAKER_01 44:07

It's the little stuff. It's height of mirrors, height of soap dispensers, height of the toilet paper dispenser, all that kind of stuff. But that's where a lot of folks, a lot of businesses get sued for.

SPEAKER_00 44:16

One thing I want to make sure that we cover is you know, you did mention at the very beginning that I can be a diva. But and contrary to popular belief, it's probably true. But how am I as a client?

SPEAKER_01 44:30

You're a great client. And here's why. Because you will call me when you think that there is actually a legal issue that you you'll call me when you don't when you know that you don't know something. And that's when you want as a lawyer, that's when you want your client to call you before they get into a contract, before they sign a contract, before they've done something that they're not sure about. You're a great client because you will call me and say hey can you can I talk to you for 10 minutes rather than hey I've screwed up and now I'm in trouble and now I need four hours of your time. So you're a great client.

SPEAKER_00 45:05

Yeah and I'm about to give you$100,000 to fix whatever the problem is that I got myself into. No like you have to ask questions. If you don't know you don't know like that's and that's why I tell hotel owners like just go like spend the money on the attorney's fees. Yeah. For the love of God just have everything reviewed.

SPEAKER_01 45:21

No you're a great client because we we talk on the phone maybe three or four times a month and it's maybe 10 minutes at a time and that's it. And that probably saves you hours and hours of time on the back end.

SPEAKER_00 45:33

100%. Yeah. And it's I'm kind of fun too. Awesome. Well Lindsay thank you so much for coming today. Hopefully you need to come back because we have a lot more we could cover on the legal field in this else. Yeah. Happy to thanks for having me as a guest check in with Brian is a production of RH Media Productions executive produced by Tyler Alexander. The views and opinions expressed in this episode are those of the host and guests and do not necessarily reflect the positions of Reliance Hospitality Global Limited Co. its affiliates or subsidiaries all content is provided for informational and entertainment purposes only and should not be construed as professional legal, financial or investment advice. Always consult a qualified professional before making decisions regarding your business