February 2010 Developments - 54

Construction & Design Key Regulatory Updatesavid Sudeck and Jim Abrams wrote a legal column in the January 2010 issue of Developments that described the current status of the proposed Americans with Disabilities Act (“ADA”) regulations from by the U.S. Department of Justice (DOJ). Those regulations have never been issued as final regulations and have been put on hold indefinitely by President Obama. The future status of those regulations is unknown at this time, and so the timeshare industry and all businesses continue to be governed by the current ADA law and regulations. Those requirements indicate that when renovations are made to all or some portion of a building covered by the ADA, developers need to ensure that compliance is part of the design and construction process. the Americans with Disabilities Act, the jurisdiction for compliance was the Fair Housing Act (FHA), plus local building codes. One advisory opinion from the Justice Department held that if timeshares operate and function more like transient lodging (hotels) than dwelling units (homes), then the project is covered by the ADA, not the Fair Housing Act, which is enforced by Housing & Urban Development (HUD). These two governmental agencies are often confused with one another and intermingled during processes and discussions. In the Fair Housing Act, there is a grandfathering provision of March 13, 1991. This means that if the property was first occupied prior to March 13, 1991, the property does not need to comply with the provisions of the Fair Housing Act. Unfortunately, there is no clear grandfathering provision in the Americans with Disabilities Act. Buildings constructed before the ADA are required to remove barriers to the extent readily achievable. This standard is based on some murky regulations which focus primarily on how much money the owner has to bring the project into compliance. Timeshares can be considered public facilities that are required to comply with the ADA. There is a common misunderstanding within the timeshare industry that older properties are not required to be compliant. This statement could not be further from the truth, as outlined previously, and yet most resort owners/managers are not aware of their ADA-compliance responsibilities or simply believe that their property must be “grandfathered in.” Presently, a major timeshare company is under investigation and has been cited by the DOJ for non-compliance. A nationwide commercial contractor and ADA specialists are currently working with that company to bring its resorts up to date and into compliance. It has become standard procedure at DOJ to target large companies and use those companies as an John C. Farrow and Rosemary O’Shea, RRP example for the industry, with the objective of alerting that specific industry (in this case, timeshare resorts) of the importance and requirements of ADA compliance. In conclusion, when the hospitality industry has facilities that are not in compliance with the civil rights laws and building codes, the industry is exposed to costly federal court and/or civil court litigation. It is imperative that the industry become proactive while working to create a program that is geared toward compliance to help avoid costly litigation and steep DOJ fines. For more information on ADA and resort requirements, please visit www.usdoj.gov. D John C. Farrow is president of Farrow Commercial Inc., and Rosemary O’Shea, Esq., RRP, is a partner at Baker & Hostetler LLP. Their e-mails are john@farrowcommercial.com and roshea@bakerlaw.com. It is imperative that the industry become proactive while working to create a program that is geared toward compliance to help avoid costly litigation and steep DOJ fines. The civil rights laws of the United States require compliance in public accommodations, commercial facilities, and residential dwelling units. The foundation of this point of compliance is the Civil Rights Act of 1964 and Title V of the Rehabilitation Act of 1973, the Fair Housing Act of 1968 as amended, and the Americans with Disabilities Act of 1990. Local building codes and ANSI A117.1 have a long history of compliance requirements in public accommodations, commercial facilities, and residential dwelling units. Before the passage of 54 Developments • February 2010

February 2010 Developments

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