Tag Archives: Legal Issues

by | February 16, 2011 · 4:18 am

Hospitality Industry Legal Risks: The 2012 "Americans With Disabilities Act" (ADA) Update Will Impact Hotel Ballrooms, Gyms, Spas And Employee Areas

“…the changes that are most significant to the hotel industry will affect public spaces, such as ballrooms and assembly areas, gyms, spas and employee areas…”

“…the current standards mandate that if you have six toilet compartments in a restroom, not only does one have to be a large ADA stall, but you have to have a second ADA stall that’s designed for people who have mobility issues. The second stall must be narrower and have rails on both sides…”

The new requirements take effect on 15 March 2012. Because the new rules will not be requirements for more than a year, any new development or remodeling completed before the new law goes into effect will be considered compliant.

The new standard is triggered by six fixtures, not compartments, in any combination of toilets or urinals. If the bathroom has only two stalls, one has to be the big ADA stall and the other has to be for those with mobility problems.

Other changes, according to sources:

  • The amount of counter space provided in the bathrooms of accessible rooms must be equivalent to the space provided in non-accessible rooms.
  • There is more explicit information about the acceptable depth of counters, which would apply to registration counters and counters in retail areas.
  • Swimming areas and spas are subject to expanded rules on accessible routes. Depending on the size of the pool, there may be a requirement for more than one access route into the pool, such as a ramp and stairs with handrails.
  • If there are multiple elevators that respond to the same call button, all elevators must be compliant instead of just one so that someone in a wheelchair doesn’t have to wait for the accessible one.
  • The disabled must be able to make reservations for guestrooms in the same manner as anyone else; if a hotel has an online system, they have to be able to reserve an accessible room online.
  • There are increased requirements for accessible routes within buildings.

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by | June 29, 2010 · 8:08 am

Hotel Pool Safety Legal Risks: Hotel Owners Must “Go Above And Beyond” Pool Safety Standards To Avoid “Negligence Per Se” Lawsuits

“…In a Negligence Per Se case, once the plaintiff demonstrates the defendant failed to comply with an applicable statute, it creates a presumption that the duty was breached.”

“…compliance with…statutory requirements alone may not be sufficient to ward off a lawsuit in the event of a swimming pool-related injury because the Swimming Pool Industry Standards recommend safety precautions that go above and beyond the statutory requirements of the building and/or health codes…”

 For example, depending on the size and configuration of the pool(s), the building and/or health codes of most jurisdictions typically require that, at a minimum, the water depth be indicated by signs that are mounted in the pool deck at specified intervals and on the vertical wall in the tile line. Additionally, if there is no lifeguard on duty, then most jurisdictions require a sign advising swimmers of that fact.

For more:   http://findarticles.com/p/articles/mi_m3072/is_15_224/ai_n48840673/

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by | April 8, 2010 · 6:33 am

Hospitality Industry Legal Issues: There Is No Clear Legal Guidance For Hotel And Restaurant Operators If They Suspect A Guest Or Patron Is Likely To Commit Illegal Acts

“A proprietor of an inn, tavern, restaurant, or like business is liable for an assault upon a guest or patron by another guest or third party where the proprietor has reason to anticipate such an assault and fails to exercise reasonable care to forestall or prevent the same.”

(From a Volokh.com posted article)   “The duty of a proprietor of a tavern or inn to protect his patrons from injury does not arise until the impending danger becomes apparent to him, or the circumstances are such that a careful and prudent person would be put on notice of the potential danger.” 

Other jurisdictions have applied the landowner-invitee analysis to determine whether a university has a duty to protect students from the criminal actions of third parties. In analyzing the issue, [most of the courts] relied upon Restatement (Second) of Torts § 344 (1964), which provides:

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to 

“(a) discover that such acts are being done or are likely to be done, or

“(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.”

The general rule is that a landowner has no duty to protect an invitee on the landowner’s premises from a third party’s criminal attack unless the attack is reasonably foreseeable. Prior similar acts committed upon invitees furnish actual or constructive notice to a landowner. A university owes student tenants the same duty to exercise due care for their protection as a private landowner owes its tenants.

http://volokh.com/2010/04/06/what-should-landlords-do-if-a-tenant-is-accused-of-a-violent-crime/

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by | March 6, 2010 · 4:26 am

Hospitality Industry Legal Issues: Medical Marijuana and Non-Smoking Hotels

 I recently had one of my hotels call me about a guest who was burning incense in his guestroom, while he was staying at the hotel. After the guest checked out, he was charged the Hotel’s “no smoking fee” of $250, as the Hotel was a non smoking hotel.

The guest immediately challenged the no smoking fee, and claimed he was burning the incense for “medical” reasons, it was “aroma therapy”. The Hotel asked the guest for a note from his Doctor prescribing the “aroma therapy” and guess what…the guest produced a Doctor’s note. It was a real prescription, from a real Doctor. So, that begs the question….does the American’s with Disabilities Act (ADA) apply? Do you as an Innkeeper have to allow aroma therapy or medical marijuana use in your non smoking hotel?

The answer is: We’re not sure yet…..

I took this question to the Hospitality Law Conference, which is held in Houston every February. The Hospitality Law Conference is attended by 400 hospitality Attorneys. These Attorneys come from all the major hotel brands, major hotel management companies and includes hospitality educators from all of the major hospitality Universities nationally. I searched out the best hospitality legal minds from our industry to discuss this issue with them.

I was surprised to learn there was no general consensus on how to handle medical marijuana /aroma therapy and the ADA, at hotels. There is no known “case law” on this issue yet, and I received a wide variety of legal opinions on how to handle the medical marijuana dilemma. I have summarized below, the “best practices” for handling medical marijuana / aroma therapy at your Hotel, based on discussions I had with the hospitality industry legal experts:

  1. Place marijuana smokers in “smoking rooms” when available. If you receive a guest complaint of marijuana use in the hotel, you should investigate. If you find the marijuana smoker, ask them for their medical prescription, or State ID card, for legal medical marijuana use. If they have the proper paperwork, allow them to continue in the smoking room (if you allow smoking). If they don’t have proof of the legal use of marijuana, ask them to stop, call the Police, or handle it according to your management guidelines.
  2. If you are an all “No Smoking” hotel, then guests using medical marijuana should be handled the same as cigarette smokers. They must leave the building to smoke. They are no different than cigarette smokers. If they smoke in their guestroom and you have the proper “no smoking” notifications and signage, then charge them your normal smoking fee. Again, you treat them the same as a cigarette smoker. I would recommend if you have “no smoking” signage in the rooms, that you add the words “this includes medical marijuana” on the signs at your next convenience.

 *****Note****, number 2 above applies to guests who are “mobile” and who can easily walk around, use the stairs and elevators, and have no physical restrictions. Most of the legal experts I spoke to agreed, that if a guest has limited mobility, due to a disability etc, then we should handle this guest differently. If the guest cannot easily exit and enter the hotel to smoke their medical marijuana, and they insist that the marijuana is part of their treatment for their disability, then you should allow them to smoke in their non-smoking room. Under these circumstances, the legal experts felt the disabled guest could fall under the ADA laws, due to their limited mobility etc. You should not charge them a “smoking fee”.

These suggestions are based on the opinions of the “best of the best” hospitality legal experts. As you know, the medical marijuana issue is being debated, legalized and defended all over the United States. Call your local Police or Sheriff departments and find out what your local and State laws are regarding medical marijuana. You should manage the guests at your hotels according to your specific laws.

Remember, you also have the right to ask a guest who is smoking marijuana to stop, unless they have a legal prescription, from a real Doctor, to be using the medical marijuana. If the guest does not have the legal paperwork to smoke marijuana, you can make them stop. Call the Police or Sheriff for assistance if necessary. You can use the internet to “google” a Doctor’s name or clinic, if you want to independently verify the validity of a guest’s medical marijuana use.

I’m sure somewhere in the United States in the near future, we will see some “case law” on the use of medical marijuana, the ADA, no smoking businesses and related issues. Until then, I hope these “best practices” help.

(Todd Seiders, CLSD, is director of risk management for Petra Risk Solutions, which provides a full-range of risk management and insurance services for hospitality owners and operators. Their website is: www.petrarisksolutions.com. Todd can be reached at 800-466-8951 or via e-mail at: todds@petrarisksolutions.com.)  

Feb 2010

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