Hotel Developers’ Dilemma: Where Do the ADA Units Go?
September 5, 2006
Christopher B. "Chris" Hanback- Washington
The Problem
The number and distribution of accessible sleeping rooms within a resort or lodging facility under the requirements of the Americans with Disabilities Act (ADA) continues to create confusion. 42 USC §§ 12181-83. Dispersion of the ADA rooms throughout a resort or hotel requires consideration of unit configuration, number of bedrooms, number of bathrooms, view, amenities and floor level. However, often these requirements are not fully considered in the design phase, but come up when a property is under construction. In addition, on resort properties that involve sales of interests, including condo hotels, the sales force may raise concerns that units with ADA accessible features are harder to sell, particularly in the high-end market where ADA requirements may interfere with desirable amenities in kitchens and bathrooms. During the construction phase, redesign or relocating ADA units may be difficult, expensive or physically impractical. Alternatives of adding extra ADA rooms in even later phases of a facility are problematical. Rather, decisions on the number and location of ADA rooms should be an important part of the architect’s responsibility during the design phase of resort and lodging facilities.
Properties Subject to ADA
Developers and operators of hotel and lodging properties have understood for a number of years that the ADA and the Americans with Disabilities Act Accessible Guidelines (ADAAG) require that a certain percentage of newly constructed units be designed to include features to provide accessibility for persons with disabilities. 28 CFR Part 36, App. A. Such provisions also appear in the International Building Code. Section 1107.6.1.1 (2003). Hotel and resort sleeping facilities are normally deemed “transient lodging” subject to the ADA’s requirements for “public accommodations.” Transient lodging is not, however, limited to hotel rooms but may also include condominiums, hotel condominiums, timeshares and fractional interests involving shorter-term stays in units that are marketed to the general public.
The line between when a unit is deemed transient lodging subject to the ADA and when it constitutes a residential “dwelling” is not settled in the law and will depend not only on how such units are occupied, but also how they may be marketed, even on a limited basis, to the public for rental. Depending on use and occupancy, units in some lodging facilities – particularly upscale resorts and communities – may be subject not only to the ADA, but also to the accessible design provisions of the Fair Housing Act (FHA), which applies to residential “dwellings.” 42 USC §3604 (f) (3) (C). For example, this may occur when a condominium unit or fractional interest is available to a purchaser for an extended number of weeks, but the purchaser in turn rents the unit to the public utilizing an operator’s rental agent or toll-free service for reservations. While the requirements of the FHA are beyond the scope of this article, the FHA is generally understood to apply to units that are occupied or rented by a separate guest, family or group for a period in excess of 30 days. In some instances, the time period for a dwelling has been held to be as short as in excess of 14 days. Extended stay, anyone?
One may reasonably assume, therefore, that the ADA accessible design requirements apply to both: (1) the hotel or resort that rents sleeping rooms for short term one to 14 night stays as well as (2) the condominium, timeshare or fractional interest property that is available for occupancy by its owner during a significant number of weeks of the year, but which is in turn rented to the public for short periods of days or weeks during the course of a season or year through an operator or rental agency handling multiple rental units at a facility.
Number of ADA Units
ADAAG was issued by the U.S. Department of Justice (DoJ) and, while styled as “guidelines,” is generally understood to set forth minimum standards for accessible design and construction in new “public accommodations” subject to limited construction tolerances or evidence of some other means of equivalent alternative accessible design. With regard to sleeping units within facilities, ADAAG provides specific guidance on both the number of units that must be made ADA accessible as well as numerous other scoping and technical requirements. For example, for buildings with between one and 500 sleeping units, between one and nine units must be made ADA accessible depending on the exact number of rooms. For buildings with between 501 and 1,000 units, 2 percent of the units must be ADA accessible and in a lodging of over 1,000 units, 20 units plus one unit for each additional 100 units, must be ADA accessible. In addition, specific numbers of additional rooms must contain roll-in showers along with visual alarms and notification devices and telephones. Buildings being altered or renovated, depending on the scope, must also provide a prescribed number of accessible units.
Additionally, in the all-condominium hotel unit setting, ownership of ADA units is a business foundation, as the required number of ADA units must always be available, generally through developer ownership. Third-party ownership and potential participation in a voluntary program is not a viable solution.
Unit Dispersion Requirements
Section 9.1.4 (Classes of Sleeping Accommodations) of ADAAG states:
(1) In order to provide persons with disabilities a range of options equivalent to those available to other persons served by the facility, sleeping rooms and suites required to be accessible … shall be dispersed among the various classes of sleeping accommodations available to patrons of the place of transient lodging. Factors to be considered include room size, cost, amenities provided, and the number of beds provided.
(2) Equivalent Facilitation. For purposes of this section, it shall be deemed equivalent facilitation if the operator of a facility elects to limit construction of accessible rooms to those intended for multiple occupancy, provided that such rooms are made available at the cost of a single-occupancy room to an individual with disabilities who requests a single-occupancy room.
In July 2004 the U.S. Access Board, the federal agency charged with advising the federal government on accessibility design standards for the disabled, issued substantially revised and reorganized new guidelines (New Proposed ADAAG) for ADA accessibility compliance. The New Proposed ADAAG is not yet law because it has not been formally promulgated by the DoJ. However, the new guidance is being considered in building and development of hospitality facilities because it indicates the likely direction of the law in this area.
New Proposed ADAAG Section 224.5 (Dispersion) states in part “[w]here the minimum number of guest rooms required to comply … is not sufficient to allow for complete dispersion, guest rooms shall be dispersed in the following priority: guest room type, number of beds, and amenities.” Further, the accompanying “Advisory 224.5 Dispersion” provides: “Factors to be considered in providing an equivalent range of options may include, but are not limited to, room size, bed size, cost, view, bathroom fixtures, such as hot tubs and spas, smoking and nonsmoking, and the number of rooms provided.”
The Real World Dilemma
How then should the hotel developer proceed? In the real world it is not necessarily obvious how to characterize units by “guest room types.” What about consumer demand? This factor is not expressly mentioned in ADAAG, nor is it expressly excluded as a consideration. In a 200 unit facility, ADAAG requires dispersion of the six ADA accessible units and the additional two ADA accessible units with roll-in showers. ADAAG 9.1.2. If a hotel is to offer only one or two styles of rooms, then the choices for a developer may not be difficult. However, at hotels and resorts with multiple levels of room size, bathroom size, hot tubs, kitchen facilities along with various types of suites, the decisions are less obvious. It is very likely that, when the “view” from the units’ windows and floor levels are considered, there may be more than eight types of guest rooms and so complete dispersion of ADA rooms is not possible.
The issue is further complicated when the sleeping room is to being rented to the public on behalf of a unit owner who will occupy the unit (or has purchased it because of certain design features). For example, would it be permissible to limit or exclude ADA units from type of units with a preferred view (e.g. ocean front) at the facility because: (1) such units would be exclusively owner-occupied or not rented to the public through any mechanism, such as a voluntary rental program involving the hotel developer or operator, or (2) if in a fractional or timeshare scheme, they were fixed-unit or fixed-week units.
Solution
The FHA and ADA have been implemented by government agencies based on simplistic hotel motel and rental apartment models. As the lodging and resort industry offers consumers more diverse facilities and ownership opportunities, the application of these accessibility requirements poses difficult questions. While there may not be clear answers, developers should understand the alternatives. They should make informed and legally defensible decisions on how they choose to distribute ADA units by relying on design and legal advice from architects and attorneys knowledgeable about ADA design requirements.
For more information, e-mail Christopher B. Hanback at christopher.hanback@hklaw.com or call toll free, 1-888-688-8500.