The Americans With Disabilities Act: An Overview for Franchisees in the Lodging Sector

By Robert Zarco, Esq.

No doubt you have heard a great deal about the Americans with Disabilities' Act (ADA) which, since 1992 has required that this nation's structures and accommodations be made more user-friendlier for those with disabilities.  If you have become a hotel or restaurant franchisee since then, or have considered doing some remodeling or renovations and wonder how this law will affect you, you are in good company.

You may also wonder how much help you can expect from your franchisor and whether the franchisor will be liable for any violations of the ADA.  This article will present an overview of the ADA for the lodging industry and the allocation of responsibility between franchisee and franchisor.  Keep in mind, however, that you should always seek the advice of an experienced attorney and architect for information about your particular structure and circumstances.  In particular, you should consult with your tax advisor to determine your eligibility for tax benefits to cover expenses incurred in complying with the ADA's barrier removal requirements.

I Already Own My Property and Do Not Plan to Remodel - Must I Still be Concerned About the ADA?

Even if you already own your hotel property and do not plan to remodel, you still have obligations under the ADA.  (Although some local building codes may contain "grandfather" clauses which exempt existing buildings, the ADA contains no such exemption.  State and local codes remain in effect; however, if elements of a State or local code provide a lesser standard of access than the ADA requires, the property is nonetheless required to comply with the applicable ADA provision.) Lodging facilities are considered "public accommodations," and are fully covered under Title III of the ADA; in providing services; a public accommodation may not discriminate against individuals with disabilities.  The ADA requires modifications to a business's facilities, policies and practices, so that all consumers may receive equal access to goods and services, regardless of disability status.

The most obvious and critical modifications involved in the lodging sector are removal of architectural and/or structural barriers.  A property owner must remove barriers to achieve accessibility when it is "readily achievable to do so."  The ADA's interpreting regulations define "readily achievable" as easily accomplishable and able to be carried out without much difficulty or expense. The ADA attempts to take a practical and flexible approach toward full compliance, recognizing that barrier removal may be inexpensive in one case, and yet, very expensive in another.

The determination of whether a change is readily achievable is to be made on a case-by-case basis, and may take into account the effect of a proposed modification on your operations.  You may also consider legitimate safety requirements in determining what is readily achievable as long as the assessment is based on actual safety risks.  The regulations provide a list of 21 examples of modifications which are ordinarily "readily achievable," including installing ramps, repositioning telephones, widening doors, installing accessible door hardware, creating designated, accessible parking spaces, and adding raised markings on elevator control buttons, among others.  The list is not exhaustive, and should only be used as a guide.

Where Do I Begin Making These Structural Modifications?

The Department of Justice (DOJ), the federal agency which administers and enforces Title III of the ADA, recommends that a property owner plan structural modifications with the following priorities.

The first priority is to enable individuals with disabilities to enter your facility.  To this end, desirable modifications include installing an entrance ramp, widening entrances and creating van-accessible parking spaces.  The second priority should be to ensure access to public areas where goods and services are provided, such as installing Brailled and raised character signage, expanding doorways, and adding visual alarm's and wheelchair ramps.  The third priority is to make restroom facilities fully accessible.  The fourth priority is to remove any remaining barriers to ancillary services, such as public telephones and drinking fountains.

Must I Modify Everything At Once?

The DOJ requires a business to do only what is readily achievable at a given time.  The DOJ recognizes that what may not be "readily achievable" for a business today, may be achievable over the next several years when that business's resources expand.  The ADA encourages businesses to evaluate their facilities continually and develop a long-term plan for barrier removal in proportion to their financial resources.

When modifications cannot be made without undue expense or difficulty, and/or until the desired change is made, a property owner may provide temporary alternatives which do not meet all ADA specifications.  For example, a store which sells merchandise might direct employees to retrieve products for customers who were unable to reach them independently, until the shelves could be moved to a more universally-accessible location.

The DOJ recommends conducting a "self-evaluation" of the property to identify potential barriers for eventual removal.  The DOJ recommends an ADA compliance plan, to decide which modifications you will be able to make immediately, and which ones you must defer.  Reevaluate the compliance plan annually and make detailed records of your efforts.  The plan may service as evidence of good faith efforts toward compliance in the event an ADA-related compliant is ever made against your property. Keep in mind that in removing barriers, a hotel or other public accommodation does not have to exceed the level of access required under the alterations provisions in the Standards (discussed below), or the new construction provision where the Standards do not provide specific provisions for alterations.

I Plan to Remodel My Property - What Must I Know About the ADA? What Standards Apply to Renovations?

Alterations must comply with the ADAAG, Americans with Disabilities Act Accessibility Guidelines, (ADAAG are issued by the Architectural and Transportation Barriers Compliance Board.  These standards which address aspects of alterations and new construction are incorporated in the DOJ Title III regulations at Appendix A to 28 CFR Part 36.) "to the maximum extent feasible." Significantly, cost is not a consideration in determining whether it increases accessibility when you are remodeling your property.  An alteration is any change which affects usability: alterations include remodeling, renovation, rearrangements in structural parts, and changes or rearrangement of walls.  Alterations do not include normal maintenance, reroofing, painting, wallpapering, asbestos removal, or changes to electrical and mechanical systems.

Flooring may be considered an alteration because it can affect usability - i.e., whether or not an individual in a wheelchair can travel inside the facility.  If so the new floor would have to comply with the ADAAG requirements for nonslip surface or with the ADAAG carpeting requirements.  Similarly, if a doorway is relocated, the new doorway must be wide enough to accommodate a wheelchair and have appropriate hardware that can be used without the grasping, twisting or pinching of the wrist.  You should consult with an ADA expert to determine how best to approach your planned renovation.

Further, when alterations are made to a "primary function area," such as the lobby of a hotel, an accessible "path of travel" from that area to the rest rooms, telephones and drinking fountains serving that area must be made to the extent that the added cost will not be disproportionate to the cost of the original alteration.   The added cost is considered disproportionate if it excess 20% of the alteration cost of the primary function area.  If the cost of making an accessible path of travel exceeds the cost of the original alteration by more than 20%, then you must still create an accessible path or travel to the extent possible without exceeding the 20% threshold, while providing the greatest degree of access possible.

What About New Hotel Construction?

Of course, all newly-constructed hotels ready for first occupancy after January 26, 1993 must comply fully with the ADA guidelines for new construction.  One notable exception to total accessibility is that lodging facilities need not install an elevator unless it contains at least three stories or more than 3,000 square feet per story.  You should evaluate the credential of all those involved in the construction of your property, to be sure that each expert had had adequate experience in achieving ADA-compliance.

Does My Franchisor Bear Any Responsibility for Removing Architectural Barriers? What About New Construction and/or Alterations?

The language of the ADA requires that anyone who "owns, leases or operates" a hotel property remove barriers to accommodate individuals with disabilities.  The statute does not address the franchise relationship explicitly, but recent court decisions have interpreted the applicable provision in the franchise context.  In determining the extent of a franchisor's responsibility for accessibility, the courts have focused on whether and how the parties' franchise agreement provided for the franchisor's control over certain aspects of the franchisee's operations.

In the case of barrier removal (as opposed to new construction), the terms of the parties' contract usually requires that the franchisee remain responsible; only in the rare case where a franchisor reserves control over the daily details of a franchisee's operations will ADA liability attach.  In the absence of almost complete control over the franchisee's operations, the franchisor bears little or no responsibility for modifying the franchised property.

Moreover, as franchisors become more adept in operating under ADA, they will draft franchise agreements that specifically and intentionally omit control over those aspects giving rise to the ADA liability.  Therefore, the responsibility for providing equal access is, and will continue to be, that of the franchisee.  Of course, if you have tenants, they must share in this obligation to the extent that their facilities may be modified to achieve greater accessibility.

In contrast to requirements for making modifications, the courts have reached inconsistent results as to whether franchisors are jointly liable for violations following new hotel construction.  The determination will usually rest upon the franchisor's control over new construction provided in the parties' franchise agreement.

In 1998, the Eighth Circuit Court of Appeals decided that Days Inns of American (DIA) had reserved such extensive control over the construction and design of the franchisee's property, that the franchisor would share the responsibility for the resulting ADA violations.  DIA appealed to the United States Supreme Court; in March 1999, the Supreme Court declined to hear the case, thus allowing the Eighth Circuit's decision to stand.  Thereafter, DIA and the Cendant Corporation settled the case with the DOJ, resolving five separate ADA-lawsuits.  Undoubtedly, following the Eighth Circuit's decision in 1998, hotel franchisors will quickly redraft their franchisee agreements so as to avoid the award of contractual discretion which would have imposed ADA liability.

For these reasons, franchisees must be as proactive as possible in their ADA compliance initiatives.  If you have not already done so, you should consult an attorney who is familiar with ADA issues to determine whether your property complies with the ADA's guidelines.  Remember, it is your responsibility - and ultimately, a wise business decision - to make your hotel as user-friendly as possible to all members of the consuming public.

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Robert Zarco is an internationally-recognized franchise legal expert and is a regularly-featured columnist of AAHOA Hospitality, as well as a guest speaker on franchise issues at AAHOA's regional conventions.  He represents many hotel and restaurant franchises in over 150 different franchise systems, throughout the U.S. and internationally.  AAHOA members are offered specially-reduced rates for legal service, including partial contingency fee arrangements under appropriate circumstances.  Mr. Zarco welcomes comments and suggestions pertaining to this column and/or to his presentations.  You may contact Robert Zarco, Esq., at the law firm of Zarco Einhorn Salkowski & Brito, P.A. at (305) 374-55418; by facsimile at (305) 374-3428; or by e-mail at zarco@zarcolaw.com.