ADA Title III – Revised and Revisited: What You Need To Know Before March 15, 2012

1. ADA Title III – Revised and Revisited: What You Need To Know Before March 15, 2012 Presented to: Hospitality Asset Managers Association San Antonio, Texas September 22, 2011 Theodore L. White, Esq. Deutsch, Kerrigan & Stiles New Orleans, Louisiana (504) 593-0604 twhite@dkslaw.com Larry Wood, AIA Wood Architects Modesto, California (209) 545-7700 wood@woodarchitects.com Dave Hogin Strategic Hotels & Resorts, Inc. Chicago, Illinois (312) 658-6055 dhogin@strategichotels.com

2. Overview, Purpose and History of ADA • The ADA is anti-discrimination legislation and NOT a building code • Originally passed in 1991, the ADA has undergone significant review and public comment over the last 10 years. This review process resulted in the current revision, which was published on 9/15/2010 • Its purpose is to ensure that all people with disabilities have full and equal access to public accommodations and the goods and services provided to the general public • Unfortunately, this well intended law has been abused by some people seeking personal enrichment rather than increased accessibility

3. ADA Title III – Key Dates • ADA Title III originated in 1991 but has now been revised (called the 2010 ADA) with new requirements mandatory on 3/15/2012 • Hotels built before 1/26/1993 must remove barriers to access when “readily achievable” (easily accomplishable without much difficulty or expense) • Hotels built between 1/26/1993 and 9/15/2010 must comply with the 1991 ADA • Alterations made between 1/26/1992 and 9/15/2010 must comply with the 1991 ADA to the “maximum extent feasible” • Hotels receiving certified building permit for new construction or alterations after 9/15/2010 but before 3/15/2012 may use either the 1991 ADA or the 2010 ADA but not a combination of both • Hotels receiving certified building permit for new construction or alterations after 3/15/2012 must comply with 2010 ADA • Existing compliant items have “safe harbor” under 2010 ADA

4. ADA Considerations for Asset Managers • Constructing New Hotels • Have specific compliance language in design contract • Managing Existing Hotels • Compliance awareness • Line item budgeting for barrier removal and alterations • Pre-purchase Inspections • Don’t assume ADA compliance • Ask for compliance survey or compliance certificate from appropriate permitting agency • Consider getting compliance survey if none available • Address non compliance with seller • Owner/Operator issues • Identify who is responsible for what • Lawsuits • Consider detrimental effect of litigation on reputation and bottom line

5. Typical Accessibility Features • Accessible route from the site boundary • Accessible entrances • Accessible parking • Curb ramps and ramps • Interior accessible routes including signage, drinking fountains & telephones • Restaurants & bars • Accessible guestrooms • Public toilet rooms if provided • Reception or checkout counters • Pools & spas • Operational issues

6. Cost Issues for Alterations • High Cost Items • Concrete walkways • Toilet room renovations • Guest room renovations • Adding ramps or lifts • Accessible transportation • Bang for Buck Items • Signage • Employee training (operational) • Tune up items

7. New Issues for HotelsLess Stringent Requirements • Detectible domes not required on curb ramps • Transfer shower threshold can be higher at existing building • Fire strobes can be added when area is remodeled and can conform to State requirements • Reach range is now 48” maximum • Toilet door can swing into fixture clear space

8. New Issues For HotelsMore Stringent Requirements Accessible counters full depth Transfer area required next to toilet Number of accessible van spaces increased Valet parking Passenger loading zones Lavatory must match other guestrooms Operable windows now covered ATMs, washers, dryers, vending machines Communications features for hearing impaired

9. New Recreational Regulations(no safe harbor provision) • Swimming pools and whirlpools • Sauna and steam rooms • Exercise rooms • Golf courses • Amusement rides (waterslides) • Recreational boating facilities • Accessible routes to court sports

10. Swimming Pools & Spas • After 3/15/2012, existing pools and spas must be made compliant with 2010 ADA when readily achievable • Swimming pools with less than 300 lf of wall • Must have at least one accessible means of entry • Can be a pool lift or sloped entry • Pool lifts have specific requirements • Swimming pools with more than 300 lf of wall • Must have two means of accessible entry • One shall be a pool lift or sloped entry • Spas • Must have an accessible means of entry • Spas in a cluster may share a portable lift

11. Swimming PoolsAccessible Entry Options

12. Golf Courses • What is required by 1991 ADA • Accessible parking, locker areas, toilets, pro shop counter, seating at dining areas and accessible routes and entrances to public areas • What is required by 2010 ADA • Accessible route or cart path to all guest facilities and holes within course • Accessible practice areas for putting and practice range • Access to one or more tee boxes at each hole • What is not required • Providing single use car • Access to bunkers

13. California Certified Accessibility Specialist (CASP) • Program offers legal protections from lawsuits in California • Limits lawsuit to actual barrier encountered • Protections start from date of inspection • There is a reasonable amount of time to make any needed improvements

14. Design & Construction Issues • Misunderstood ADA requirements • Requirements overlooked or misapplied during design and construction • Overlooking State Building Code Requirements • State requirements may vary from ADA • Construction Deviations • Rooms narrower, bathroom smaller, walkway slopes exceed 2% • Construction Substitutions • Materials may not match original selections • Interior Designer • Architectural drawings may not show furniture, be sure it fits • Operational and Maintenance Issues • Make sure operator is aware of its compliance obligations 13

15. ADA Title III – Misc. Legal Issues and Concerns • Suits can be filed for non-compliance by individuals or by the DOJ • Suits often filed in Federal Court with State claims included • Only injunctive relief available in Federal Court • Some states have compensatory damages available to successful plaintiffs • Losing party pays attorney fee and costs • Generally, no insurance available to owner for Title III claims • For “readily achievable” barrier removal, the financial resources of the parent company can be considered • Owners often rely on their architects during design and construction but fail to include them in dispute resolution efforts • Architects may have E&O coverage available for their failure to design to the ADA’s requirements • Owners and Operators may have differing views about compliance responsibilities and resolution efforts

16. Action Items • Identify newly covered items and bring into compliance when readily achievable • Identify existing non-compliant items and determine whether to make compliant with new or old regulations • Make sure operators are aware of their obligations • Policies and procedures • Employee training • Maintaining accessible elements • Reservations procedures • Acquiring accessible ATMs, vending machines, etc.

17. Disclaimer This presentation has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and its receipt does not constitute, an attorney-client relationship. Participants should not act upon this information without seeking professional counsel. The materials discussed during the presentation should not be construed as legal advice or a legal opinion on any specific fact or circumstance. The content of this presentation is intended for general information purposes only and you are urged to consult an attorney concerning your own situation and any specific legal questions you may have. Any tax information or written tax advice contained herein is not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed on the tax payer.