Emotional Support and Service Animals in the Travel Industry

Introduction

Animals have always been a large part of day-to-day human interactions. Humans began to domesticate animals approximately 12,000 years ago. They were originally used to provide efficacy to certain functions such as hunting and herding. Over time, however, they began to be used mainly for companion purposes (Butwin, 2019). Dogs are now considered “man’s best friend”, some women proudly dub themselves “crazy cat ladies”, and you can find pigs, chickens, and lambs outside of homes with farms. After World War I, millions of veterans returned home from the war having to manage permanent disabilities. This was the first record of service animals in US history (Butwin, 2019).

This essay analyzes the different laws and regulations established by different government agencies regarding emotional support animals and service animals when traveling. It will examine two court cases to demonstrate the different legal disputes that can arise when dealing with patrons who require special accommodation for travel with service and emotional support animals. This essay will also establish the differences between service animals and emotional support animals. In order to do so, the paper will determine the laws that apply to each category of animal and establish the main differences that allow travel providers the legal ability to allow or deny these animals access to travel.

Historical Background

Emotional support animals (ESAs) are defined by American Humane as “companion animals who help their owners cope with the challenges associated with emotional and mental health conditions (such as depression and anxiety) by providing comfort with their presence” (American Humane, 2018). It is important to distinguish that ESAs are not pets. Unlike pets, ESAs have more access to locations such as restaurants and hotels because they are prescribed by licensed medical health professionals. Unlike service animals, ESAs have no official training and are merely there for companionship and support for their owners. Most any animal that would be considered a pet can be classified as an ESA. This includes cats, dogs, mice, rabbits, birds, pigs, horses, and more (Butwin, 2019).

Service animals are trained to assist their owners with the ease of challenges related to the owner’s physical, psychiatric, sensory, and/or developmental disability. These animals go through long and strenuous training to be able to help their future owners. Some common types of service animal types are guide, hearing, medical alert, mobility, autism service, and psychiatric service animals (American Humane, 2018). Service animals have the ability to accompany their handlers in any public space or facility in which they might be required. The American Disabilities Act protects these animals and their handlers by establishing a set of rules and regulations that must be followed by establishments hosting these types of guests, as well as the guests themselves (Sutton, 2015).

The American Disabilities Act of 1990, also known as the ADA, was created to eliminate discrimination against those who were physically and/or mentally disabled. There are three main titles divided in the ADA in order to protect disabled persons. Title I applies to employees, Title II applies to state and local government, and Title III applies to private entities that serve as public accommodations (Bourland, 2009). Public accommodations refer to places such as hotels, restaurants, theaters, shopping centers, and other places that serve the public. Despite its wide range of coverage, ADA laws do not apply to housing, education or air transportation due to them being governed by other federal statutes. ADA laws are not just enforced by the ADA. In order to obtain full cooperation and to ensure that these rules and regulations are being followed appropriately, other government organizations also enforce ADA laws and work with the ADA to protect disabled persons from discrimination.

Restaurants and other public places have a few things to keep in mind when receiving patrons with disabilities. The first is that ADA regulations overrule any local health department regulations allowing the facility to ban animals from entering their establishment. This means that if a guest with a service animal (these rules exclude emotional support animals) enters into a public establishment, they cannot be turned away or denied service. The staff of the establishment is only allowed to ask two questions to disabled guests with a service animal. The first is “Is this a service animal required because of a disability?” and “What work or tasks is the animal trained to perform?”. Anything further, like asking the disabled person to prove their disability is permitted. Restaurant guests can also not be separated from other patrons when dining. The public establishments are not the only ones responsible for following ADA laws and regulations. Patrons are also responsible to make sure that they and their service animals are compliant. If a service animal uses the restroom in the middle of the establishment or if the service animal eats from the table, the public establishment is well within their rights to ask the patron and their service animal to leave (National Restaurant Association, 2019). It is also important for guests to be mindful of how long they leave their service animal unattended. For example, a guest visiting a hotel that is not taking their service animal with them somewhere must make sure to put the animal in a crate or periodically check on them to make sure that they have not causer damage to the room. (Army Public Health Center Animal Health, 2016)

Analyzation of Cases Dealing with ADA Law

Summary of Case: McDonald v. Department of Environmental Quality

The first case this paper will be analyzing is McDonald v. Department of Environmental Quality (DEQ). In this case, the respondent, Jamie McDonald was hired by the DEQ as one of their fiscal officers in their financial services division in August of 2002. McDonald suffered from dissociative episodes which caused her to space out, leave tasks incomplete, and lose track of her surroundings. She also suffered from depression and a permanent leg injury sustained in a car accident. As a result, McDonald had a service dog named Bess to assist her physically and emotionally. As time went on and winter approached, Bess began to slip and slide on the tile floors in the building where McDonald was employed. McDonald called CARES, the agency that trained and placed Bess as a service dog. When McDonald informed them of the situation, they advised McDonald to have Bess practice on similar floors in order for her to become acclimated with walking in the DEQ building. McDonald practiced with Bess over the weekends at establishments with similar floors. The result was unsuccessful, so McDonald attempted to put booties on Bess’s feet. That also turned out to be unsuccessful. In March of 2003, McDonald requested that DEQ install floor coverings on the ground floor that lead from her office to the elevator, restrooms, and building entrances to prevent Bessie from slipping and falling. DEQ submitted a request to the General Services Division for extra floor mats, yet no further action was taken.

In July of 2003, a “condition inventory” of the building was issued by Doug Olson, the General Services Division facility manager. In his inventory, he noted that the ground floor of the building become slippery when it is wet and suggested that carpet runners be installed as a solution. In September 2003, McDonald sent an email to Virginia Cameron, the human resources manager for DEQ. In that email, she requested that as per the American Disabilities Act (ADA), she would like full length runners to be installed in the ground floor hallways of the building.

Cameron forwarded this request to Olson but received no response. Cameron reached out to Constance Enzweiler, the ADA specialist for the Department of Administration. Enzweiler then reached out to the federal Job Accommodation Network (JAN). In November 2003, Cameron met with McDonald to see if where the carpet runners were installed would be good enough. McDonald said that she would attempt to use them but did not think that they would be adequate enough because the area she covered was much smaller than she had originally requested. In January 2004, Bess fell again, but this time she sustained an injury to her neck. Bess needed treatment for a cervical disc disease due to the fall. When she was being examined, it was also noted that she had arthritis in her shoulders and excessively long toenails. Bess was physically limited due to this fall. McDonald attempted to get more adequate floor runners inserted, however she was told that the general services department would not pay for them. In 2004 Bess fell a third time, causing McDonald’s to have to leave Bess at home. McDonald attempted to make a request one more time and again was met with no result. McDonald resigned in August 2004 to accept a higher paying position. McDonald filed a disability discrimination complaint with the Human Rights Bureau of the Department of Labor and Industry (DOLI) (McDonald v Dep’t of Envtl. Quality, 2009)

Verdict & Analyzation

The DOLI hearing examiner ruled in favor of McDonald and awarded her damages in the amount of $26,869.84. DEQ attempted to appeal the decision made by DOLI. The case was presented to the Human Rights Commission (HRC). Due to only four of the five of the HRC members being present (one member had recently resigned), the vote was split and HRC decided to uphold the decision made by DOLI. McDonald was ignored and overlooked in her request to get accommodations for her and her service animal. This case was included to show the importance of employers making accommodations for their employees with disabilities. Travel and lodging businesses should take heed and learn from the experience that DEQ had with not making an effort to make those accommodations for their employee. Part of ADA regulations for employees is that they are entitled to accommodations that will allow them to do their jobs with ease. When DEQ ignored McDonald’s multiple requests to add a proper floor covering that would allow McDonald’s and Bess ease of access to the building, they were discriminating against McDonalds. ADA Title I protect employees against discrimination, specifically in this case by not providing the necessary accommodations allowing the service animal to do their job well. The DEQ could argue that Bess already had arthritis and had long fingernails which could have contributed to the severity of her injuries. The result of the verdict, however, shows that it is better for employers to make sure they are making reasonable accommodations for any disabled employees. (McDonald v Dep’t of Envtl. Quality, 2009)

Summary of the Case: D.E. v American Airlines

The second case that this paper will review is D.E v American Airlines. In this case, the plaintiff, D.E. is alleging claims of negligence, negligence per se, intentional infliction of emotional distress and negligent infliction of emotional distress against American Airlines. On October 21, 2016, a travel agent for the plaintiff’s employer booked a ticket for the plaintiff to travel in November 2016. The plaintiff adv the travel agent that she would need extra leg room because she was traveling with her psychiatric service animal. When the reservation was made, the travel agent chose 9B, which had extra legroom at the plaintiff’s request. Four days before the flight, the plaintiff called the American Airlines reservation department and requested that her seat be changed to a bulkhead window seat. Her call was connected to an American Airlines Special Assistance Coordinator (SAC). The department handles requests for passengers with disabilities. While waiting for further contact from the SAC, the plaintiff sent in a signed copy of an American Airlines “Emotional Support/Psychiatric Service Animal Authorization Form” along with a handwritten note to discuss further accommodations needed.

The next time there was contact between the SAC and the plaintiff was the day before the plaintiff’s flight. The SAC department called the plaintiff but received no answer and left her a voicemail. Later that same day, the plaintiff checked in for her flight. After reviewing the seating information, she contacted the SAC department. She was told that because she had already checked in, she would need to speak to the local airport personnel for her request to be fulfilled. The plaintiff spoke with a supervisor from the SAC department who noted that he advised the plaintiff that her concerns for her support dog had been documented and that she would need to report to a local airport personnel in order for her request for a bulkhead window seat to be fulfilled. The day of her flight, the plaintiff arrived at the airport and went to the ticket counter where the agent informed her that seat was 9B and that she was unable to change it to the seat she requested (7A) because it had been assigned to another passenger. The agent was said to be impolite when the plaintiff attempted to explain that the reason for her requesting the seat reassignment was due to the need for accommodation due to disability. Another American Airline’s employee offered the plaintiff a bulkhead aisle seat and a regular window seat which the plaintiff declined. At the flight gate, the plaintiff was reassigned to the bulkhead aisle seat and she boarded the plane. Once onboard, the plaintiff asked the passenger in the bulkhead window seat if they could switch and the passenger agreed. The plaintiff moved to the bulkhead window seat. An American Airlines employee asked the other passenger if they would be willing to move to another seat to allow the plaintiff and her service more space for the flight. The passenger agreed and the seat next to the plaintiff was left empty for the rest of the flight. No oneat American Airlines ever questioned the plaintiff and her right to bring the service animal onto the aircraft (D.E. v. Am. Airlines, Inc., 2020).

Verdict & Analyzation

The plaintiff brought the claims of negligence, negligence per se, intentional infliction of emotional distress, and negligent infliction of emotional distress against American Airlines (defendant). The defendant’s filed a motion for summary judgement on all presented claims. The court held a hearing on the defendant’s motion where the plaintiff admitted that her second claim for relief alleging an intentional infliction of emotional distress should be dismissed. The court found that there was no breach of the defendant’s responsibility to the standard of care set forth in the Air Carrier Access Act (ACAA). The plaintiff also did not oppose the defendant’s motion for summary judgment on the claim for intentional infliction of emotional distress. Therefore, the court grants the defendant’s motion. The US Department of Transportation released a brochure covering what is required and can be asked of patrons traveling by air with service animals. It includes information like “An airline is not required to upgrade you to a different class of service to accommodate your animal” and “Your animal must be permitted to accompany you in the space under the seat in front of you” (U.S Department of Transportation, 2020). All of the things listed in this brochure were followed by American Airlines. This case was included to show the importance of following all protocols and maintaining the same standard of care as the rest of the industry. American Airlines employees followed their procedures properly when assisting the plaintiff. If anyone had skipped a step or been proven to have mistreated the plaintiff and her service animal, the outcome would have been very different (D.E. v. Am. Airlines, Inc., 2020).

Discussion of Laws/Act Application

As mentioned previously in this paper, there are some distinct differences between ESAs and service animals. The main one being that ESAs have no training and are strictly for emotional support, while service animals go through extensive training and aid their owners with physical tasks. ESAs for a long time have been seen as a “hoax” and have even been dubbed as “fake service animals” (Wlodarczyk, 2019). This also causes a lot of confusion and leaves a lot of room for discrimination against ESAs. Despite the confusion, there are laws and acts that apply to both service animals and ESAs. One of those acts is the Fair Housing Act (FHA). The FHA “prohibits discrimination in housing and is administered by the Department of Housing and Urban Development (HUD)” (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020). According to the FHA, any species of animal can qualify and establish that an animal must provide a disability assistance and is more than just a pet. The FHA states that an animal can qualify merely by “providing emotional support that alleviates one or more identified symptoms or effects of a person’s disability” (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020). Another act that includes ESAs and service animals within their set of regulations is the Air Carrier Access Act. “The Air Carrier Access Act (ACAA) prohibits discrimination aboard airplanes and is administered by the Department of Transportation” (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020). It uses the term “service animals” to describe the animals under which the laws apply, however the phrase encompasses both service animals and ESAs (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020).

There are rules, however, that apply to service animals that do not apply to service animals due to the typically extensive training that service animals must undergo. One big set of laws that separate the difference between service animals and ESA’s is the American Disabilities Act (ACA). The ADA clearly states that “first, only dogs and miniature horses can qualify as service animals. Second, the animal in question must have been individually trained to perform a task related to the owner’s disability. This training need not be particularly extensive or even professional; in theory, owners could train the animal themselves at home” (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020). Unlike guests with ESAs, who can be asked to present proof of documentation, guests with service animals cannot be pressed for certain information about whether or not the animal is required (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020).

Conclusion

This paper’s goal was to analyze and discuss the differences and the importance of both ESA’s and service animals. Through the analyzation of two different cases regarding service animals and emotional support animals, this paper was able to identify the importance of each animal group to their owners as well as the appropriate and inappropriate ways for public establishments and travel entities to handle guests with service animals. By discussing the different laws and acts that apply to both animal groups versus one over the other, this paper was able to establish the difference of the two animal groups and how they are able to be handled when entering a public/ travel entity. In the travel and lodging industry, it is a very high possibility to encounter a guest with a disability. In order to protect the guest and the business organization, it is important to understand what laws apply to what type of animal group, and what rights the business organization has when encountering a guest with one of those animal groups. This paper has successfully outlined some of these rules and has given options as to what can be done to prevent discrimination in the future.

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Environmental Issues

Introduction

This paper analyzes the importance of resorts being corporate socially responsible and how it affects environmental issues. Some environmental problems that will be discussed throughout the paper are conservation of water, waste management, energy conservation, and sustainable guest experiences. This paper will clearly define corporate social responsibility and why it is essential to the hospitality sector. I will discuss CSR’s main components, including being discretionary, ethical, legal, and economically socially responsible. The law review that will be evaluated in this essay is the National Perspective on Mountain Resorts and Ecology, 26 Vt. L. Rev. 515. This law review will answer one of the legal questions: how can hotels incorporate legal regulations of environmental problems? The case Massachusetts v. EPA, 549 U.S. 497 describes the importance of staying up to standard with regulations because it can cause negative impacts on the environment. The case will also present the legal repercussions of not following environmental laws.

This paper is divided into four parts. First, a description of CSR and the environmental issues essential to incorporate in any hospitality business. Following that, the background of the law review and the law case. Also will describe the impact of both law case decisions and how they affect the hospitality industry. Lastly, recommendations will be presented to help better companies be sustainable and minimize the chance for legal disputes.

Corporate Social Responsibility

Being corporate social responsibility refers to corporations’ policies and practices to positively influence the world and environment. CSR’s primary focus is to include the best business practices that are pro-social objectives while maximizing profits. Many companies view CSR as an integral part of their brand image, which assumes that customers are more likely to be

drawn to businesses that are perceived to be more ethical. The main components of CSR include being discretionary, ethical, legal, and economically socially responsible. Discretionary social responsibility means providing your companies time and resources to contribute to the community as a whole. This is directly related to the company’s brand image and how it’s meaningful to them. This could include employees volunteering, donating money, service, or charitable organizations. Ethical social responsibility consists of the following legal procedures and being ethically right in all aspects of a business. A company must ensure an ethical workplace while being able to see how the industry impacts the environment. Next is being legally socially responsible, including paying the right taxes, meeting financial obligations, adhering to labor laws, and being overall environmentally safe. Lastly, economic, social responsibility means being profitable and sustainable enough to start giving back. Sustainability includes making a profit for shareholders, paying its employees a fair wage, paying business taxes, and meeting other financial obligations. A corporation can show economic responsibility by being transparent with all stakeholders about the business’s financial status.

CSR also includes sustainable operations within a hotel, which directly affects environmental issues throughout the world. A significant sustainable process includes using waste management, which provides water conservations, energy conservation, sewage treatment, and much more. A sewage treatment plant ensures that no grey water or raw sewage is discharged into the sea. Water conservation is essential because it lowers the consumption of water. Some hotels use a rainwater catchment system that filters and stores rainwater in guestrooms and around the property. Some companies also use a desalination plant that converts saltwater into freshwater, suitable for human consumption. Next is energy conservation, where facilities use eco-friendly light bulbs to optimize natural lighting, uses of solar panels, and more.

 

Many businesses incorporate nature conservation and protection, which consists of monitoring wildlife and preserving the marine ecosystem. These operations help reduce the consumption of materials created and provide the business with a carbon footprint. Environmental issues can lead to despondency: species extinction, deforestation, desertification, toxic waste, acid rain, global climate change, and severe air and water pollution in large cities and emerging countries.

Historical Background

Corporate law is the body of rules, statutes, regulations, and practices that govern businesses’ operations and formation. Legal debates over corporate social responsibility stretch from the 1930s to the twenty-first century. The traditional discussions over corporate social responsibility revolve around whether the directors and managers of large, publicly held corporations should have a legal duty, when making decisions for the corporation, to take into account not only the needs of the shareholders but also other groups affected by the corporations’ actions, such as its employees, customers, or the communities in which they are based. The first debate over CSR was in 1931, where A.A. Berle and E. Merrick Dodd discussed corporate managers’ responsibilities that owed the stakeholders and others directly influenced by the corporation. Next, I will describe the law review that focuses on how the ecosystem is affected within ski resorts and the legal associations created to protect the land.

National Perspective on Mountain Resorts and Ecology, 26 Vt. L. Rev. 515

The purpose of this legal review is to indicate the United States ski industry’s relationship with its ecosystem. Next, it will determine the Ski industry’s environmental outputs and provide good examples to follow. This review also suggests ways for associations and resorts to reduce their environmental impact. When looking at the ski industry profile, we see that it has been steady for the past twenty years. For example, in the winter of 2001-2002, the number of skiers and snowboarders was 57.3 million people and increased. Due to the popularity of skiing increasing, we see fewer smaller resorts and see more large resorts. Ski areas that at one point were on the bottom of the hill have grown up to the mountain peaks. For instance, trails are cut at higher altitudes going through ecosystems to reach better snow. Sometimes these vast ski resort expansions can displace the character of these rural mountain communities. Today many ski areas are finding ways to reduce any adverse effects that happen with their building. Many trails are not clear cut but instead use gladded paths, which have less burden on the ecosystems. Climate change and global warming has impacted the ski industry and will continue to do so. Due to this vast impact, ski resorts should maximize their efforts to reduce environmental effects resulting from their operations. The NSAA in 1999 presented an open process for stakeholders to help create sustainable slopes that make a ski area environmentally responsible for designing, planning, construction, and public outreach. Sustainable slopes include twenty-one principles designed for ski areas to follow or provide options for getting to that level of CSR.

An excellent example of leadership in action is the Aspen skiing company. They use wind power energy for their lifts, and their building is in regulation with the US Green Building Council’s Leadership in Energy and Environmental Design certification requirements. There is a wide variety of government organizations that are protected by the law to help with sustainability. One of these organizations is the U.S. The Department of Energy intends for businesses to use supplies of clean and affordable energy. “DOE’s research and development programs are producing cutting-edge technologies that can play an integral role in your community’s sustainable development efforts-for example, technologies that make buildings 50% more energy-efficient, that help industries prevent pollution, and that produce electric power from clean, renewable resources.”

My first recommendation for action is providing better leadership to help expand the environmental program, with more information about environments, workshops, training, and marketing. The NSAA should develop a council that helps advise on strategic planning, evolving priorities, and implementing environmental programs. My second recommendation is to increase the power of the public. The public needs to insinuate the demand for superior environmental performance from the NSAA and through a local level. A sustainable slope also needs to achieve a high level of performance, which can be enticed by having an incentive and rewards membership. Sustainable Slopes need to go beyond total values and conservation of energy, waste, and water. It should develop inventories for habitat, species, forests, and wetlands, and conservation quantities for those indicators. A big part of any organization is setting goals that are meant to be achieved in the short and long term.

Legal Issues

Environmental law explains the regulations, statutes, local, national, and international legislation, and treaties. This law is designed to protect the environment from damages and explain the legal consequences of these damages. Environmental law covers the protection of ecology and the health of the environment. The first and most predominant way of seeing environmental law is pollution. There is the enforcement of air standards determined through pollutants emitted through the motor vehicle and industrial processes. Some of these laws are directly focused on placing limitations on these emissions. For example, the DMV requires emission tests for annual vehicle safety checks.

Containment cleanup, prevention, and mitigation directly deal with legal issues of negligence. Regardless of whether such a pollutant leak is avoidable or unavoidable, necessary laws determine what is required of the responsible party. The team accountable for the cleanup should ensure that contamination is first limited and controlled and then removed from an environment to avoid longer-term or large-scale damage. Regulations can also include liability, response, determine the investigation process, monitoring before, during, and after cleanup, and the risk assessment of long-term effects. Any workplace is required to be educated and knowledgeable about the safe use of chemicals. There are chemical safety laws that govern how establishments use these chemicals or which chemicals they shouldn’t use. This means correctly storing chemicals, application of safety equipment, and licenses of storage containers. Waste management laws are governed through laws that enforce transportation and storage and proper disposal and treatment procedures. There are state, federal and international laws that state what we can and cannot do to water sources concerning water quality. Water quality laws concern releasing pollutants into any water body, be it surface water, drinking water supply, water table, rivers, seasons, and oceans. Next, I will be explaining the effects and issues of global warming.

Global Warming

The first legal issue to address climate change was in 19992 when the United Nations Framework Convention on climate change took place. This connection was the stepping stone in law-related topics dealing with global warming, but it was still struggling to make federal, state, and regional laws. The first report to entice attention on an international level was the 1990 Assessment Report, which described greenhouse gas emissions. This report showed how greenhouse gases affected the earth’s surface’s substantial warming, which was beyond natural occurrence. Six leading greenhouse gases contribute to global warming, but the main gas is carbon dioxide. In the United States, the main human activities that create greenhouse gases are transportation, power generation, industry, agriculture, and commercial buildings. Overall, the increase in greenhouse gases is caused by the entire economy, which means everyone has a part in global warming and must reduce the issue. In December 1997, the UNFCCC created a binding contract from 37 industrialized nations and the European community to reduce GHG emissions to an average of below the 1990s level. These nations agreed to make nation-specific targets to reduce GHG emissions in the summer of 1997, the U.S. On a 95-0 vote, the Senate created a resolution that opposed any treaty that failed to have duties to help reduce GHG emissions. This protocol is put into three mechanisms: emission trading, clean development mechanism, and joint implementation. Nowadays, we have a vast amount of laws for climate change. One of the more recent laws is the Consolidated Appropriations Act that renews tax credit programs for wind and solar electricity generation. It also incorporated a phase-out schedule for these support programs that provide stability for the renewable energy market. Overall, global warming is a pressing issue affecting everyone globally, and it is vital to continue to find new ways of reducing our emissions and creating sustainable practices. In the next section, I will be overviewing Massachusetts v. EPA, a crucial case that started implementing global warming laws and regulations.

Massachusetts v. EPA, 549 U.S. 497

I will first describe the background of the case; some private organizations filed a petition that asked the Environmental Protection Agency (EPA) to regulate the emissions of the four greenhouse gases, which include carbon dioxide in the § 202(a)(1) of the Clean Air Act. This clean air act depends on the EPA to provide standards that apply to any pollutant emission from motor vehicles. The EPA stated the action did not authorize to make mandatory regulations to address climate change, or even if they had the authority to set greenhouse emission standards, and they wouldn’t. The Agency further characterized any EPA regulation of motor-vehicle emissions as an approach to climate change that would conflict with the President’s comprehensive approach involving additional technological innovation support. Two of the judges agreed with the EPA that they properly exercised the denying of the rulemaking petition. However, one judge concluded that the exercise of judgment could be based on scientific uncertainty and other factors. The second judge stated that the petitioners hadn’t provided any personal injury necessary to establish a standing, which the court denied for a review.

Global warming is one of the most pressing environmental issues of our time. Even though global warming affects our planet in every way, the government doesn’t address it enough. Petitioners have come to the courts because they are unsatisfied with the elected branches’ progress. The legal question that is presented is, Does anything require the administrator to make a “judgment” whenever a petition for rulemaking is filed? By a 5-4 vote versed the D.C. Circuit and ruled in favor of Massachusetts. Justice John Paul Stevens stated that Massachusetts had the standing to sue EPA over potential damage caused to its territory by global warming. The Court rejected the EPA’s argument that the Clean Air Act was not meant to refer to carbon emissions in the section giving the EPA authority to regulate air pollution agents. The majority ruled that the unjustified in delaying its decision based on prudential and policy considerations.

The result from the case was that greenhouse gases from mobile sources were considered air pollutants. Under the CAA, the EPA was obligated to “cause or contribute to air pollution which may reasonably be anticipated to endanger health or welfare.” In May 2010, the EPA and National Highway Traffic Safety Administration created regulations for GHGs from cars and light trucks under Title II of the Clean Air Act. With the GHG emissions being regulated by the CAA, the EPA had new interpretations of the Clean Air Act. The EPA implemented and promulgated regulations for sources under the new source performance standards and recent source review. Developed from the Clean Air Act of 1963, the Clean Power Plan establishes state targets for reducing carbon emissions and offers a flexible time frame for states to achieve those targets.

As a manager, it is essential to understand the importance of environmental sustainability practices. As a manager, you must be educated to motivate employees to participate in these sustainable practices. When being educated, you can also guide the managers to decide which environmental policies are suitable for their hotel. For a business to become more sustainable, a manager will also need help from associations or the government to provide education and training. The manager must entice their employees when they try to get them to engage in sustainable development. The sustainable development strategy will be adaptable due to each business because the location, property, and staff are different. An essential factor is communication from a manager because a sustainable development strategy must be well prepared. The goals must be communicated to the ownership, management company, and executive committee. This allows stakeholders to invest and support the sustainability movement. To a management company and shareholder, sustainability provides property costs and generates revenue and brand image. The triple bottom line keeps them focused on delivering profit while helping the community and environment to the employees and management. As a manager, I would want to start with a PowerPoint that demonstrates what sustainability is about, what countries are currently doing with this matter and show CSR initiatives in large and well-known corporations. I would also want to incorporate how local authorities or businesses are including sustainability within their establishments. To display such a strategy’s seriousness, include it in the property’s mission statement and values and introduce it to potential employees during the interview process to trigger a conversation and engage the employees from the beginning of their association to the hotel. It is also essential to get feedback from your employees by asking what they would like to see benign added to the property strategy. Recognition is necessary by celebrating and communicating internally and externally. To achieve sustainability in any business, everyone must want to participate and be involved with the process. To keep employees engaged, it’s crucial to develop new ideas to implement and new ways to recognize individuals for succeeding.

Conclusion

Corporate social responsibility and having sustainable business practices are important ways for businesses to give back to the world while getting returns on investments. Global warming continues to become a substantial problem throughout the world as we continue to grow and industrialize. There is a vast amount of environmental issues caused by global warming, and we must help in every way we can. Businesses and individuals need to be following ecological laws and doing their part to help reduce greenhouse gas emissions. From a legal standpoint, in this paper, we could see why it is vital to keep people liable for being environmentally safe. Environmental laws must stay in effect while adapting to new issues or new developments in technology.

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Environmental Issues and their Impact on Resorts

Introduction

This essay analyzes how the legal decisions that have affected the environment have also impacted resorts. Environmental Laws and Rules help prevent resorts from having uncontrolled growth that may lead to harmful environmental impacts. These laws can help regulate the planning of any new resorts and the use of facilities and water treatment plants. Since environmental issues have come from all counties and industries they have been addressed by all levels, international, national, and local laws and policies.

Background

All around the world, there are major discussions about the impact human activity is having on the environment and how they are responsible for climate change. So many groups are strongly advocating for laws to protect the environment, which can have some impact on different industries including resorts. Humans have impacted the physical environment in many ways such as overpopulation, pollution, burning fossil fuels, and deforestation. The hospitality industry may not be among the industries that are considered the largest contributor to environmental issues around the world, they still play a part. For many people, anything that can be done to improve is a step in the right direction therefore any laws that help are important. The hospitality industry employs 10% of the population, therefore striving to be more environmentally conscious can have a major impact on the world (Kirk, 2016). It can help by not only reducing the negative impact on the environment but create awareness in the population. The main impact the hotel industry as a whole can have on the environment are things like CO2 and CFC emissions. Hotels can also have a large amount of energy, water, and food waste. An important factor to consider is how the industry disposes of its waste. The location of a hotel can also impact the environment because it can affect the ecology and natural resources surrounding it.

International Actions

Although some of the international movements and policies are focused on other industries such as oil and gas, every industry is impact by secondary and tertiary effects. Some international treaties that impact the environment and every industry are the Montreal Protocol of 1987 and Climate Change Convention of 1992. The Montreal Protocol focused on eliminating the production and consumption of products that were causing damage to the ozone layer. These ozone depleting substances could be found in refrigeration, fire suppression, and foam insulation so it affected the hospitality industry because they needed to take into account the need for new products that minimalized these effects which can have financial implications. Climate Change Convention of 1992 addressed the overall health of environment because many countries around the world all agreed to lower carbon dioxide emissions (EPA, 2020).

National Policies

The Clean Water Act of 1972 established a way of regulating discharges of pollutants into the waters of the United States. It also created a standard for the quality of surface waters and made it against the law to discharge any pollutant into waters without permission. This directly affects a resort because they must make sure to control where wastewater, sewage and other waste goes. They also have to consider that there are pesticides and fertilizers that may run off into the water from and cause contamination. Many of these policies and laws can have greater financial cost to the resorts therefore it is something that they need to be very conscious of. This is important legislation because unclean water can cause many different health problems which includes Gastrointestinal, Reproductive, and Neurological issues. There are inspections to ensure that these guidelines are met and when they aren’t violators can face either civil or criminal penalties especially if they are aware of the danger, they are causing the general public. This act was amended in 2018 to improve overall water infrastructure (EPA, 2020).

Clean Air Act is another federal law, but the difference is that it regulates air emissions. It limits the amount of emissions and makes sure overall Air quality is maintained. It contains guidelines for cars, airplanes and even noise pollution. Resorts can add more noise to the environment, so it is something to consider on how they impact the area they are in. Permits and violations are treated in a similar manner to the clean water act. This effects resorts because they need to monitor how they may be polluting the air and how to lower it in order to not get fined (EPA, 2020).

One important government mandate for the environment is the Reorganization Plan No. 3 of 1970. This plan was sent to congress by President Nixon and was the beginning of the Environmental Protection Agency which created to establish and enforce federal environmental protection laws (EPA, 2020).

There are also certain requirements hotels must meet before beginning construction to make sure they are not having a negative impact on the environment. Hotels and the tourists they attract can destroy the local environment and habitat of native animals. These requirements are established out by the National Environmental Policy Act and include detail statements on the following:

  1. The impact your action will have on the environment
  2. Negative impacts that can’t be avoided
  3. Alternatives to your proposal
  4. The relationship short-term uses and long-term productivity
  5. Are the any resources that would irreversible and irretrievable (EPA, 2020)

Recently more than twenty states sued the Trump administration for trying to decrease environmental regulations on infrastructure projects which included permits (Reuters,2020).

Legal Issues

Robertson v. Methow Valley Citizens Council, 490 U.S. 332- 1989

In this case a citizen’s council came together and claimed that a new proposed ski resort didn’t meet NEPA requirements before getting a permit. The district ruled in favor of Robertson while the appeal court reversed that decision. Ultimately the supreme court ruled that decision made by the original district court was correct. NEPA requirements did not state that the petitioner needed to include a worst-case analysis. They just need to make sure they detail how they are going to prevent or reduce negative environmental impacts. This shows that resorts will be held accountable to just the requirements stated and that they need to make sure to have accurate documentation.

Sierra Club v. Morton, 1972

The Defendant wanted to develop a piece of Mineral King Valley inside Sequoia National Forest into a Disney ski resort. The plaintiff sued stating that the resort would violate federal laws for the preservation of national forests. Although plaintiff originally received an injunction it was later appealed since the plaintiff lacked standing. The Sierra Club then amended their claim using the National Environmental Policy act to show that Disney would need to submit a report on how the presence of the resort would impact the surrounding area. They couldn’t show that the construction of the resort would affect them. This shows how important it is to have proof that there will be adverse effects in order for an environmental case to be successful. Although Sierra Club didn’t win the lawsuit, this ended in a positive because Disney backed out of the project after they saw the impact the resort would have. Awareness is also a good outcome for some advocacy group, just getting company’s and resorts to see negative environmental effects is a positive. This case helped set the prescient on how environmental cases would be handled.

National Cotton Council v. EPA 2009

This case had to do with the regulation of pesticides in bodies of water. For a long-time EPA allowed for pesticides to be put into the water without a permit and had the FIFRA monitored the use. The environmental interest group’s petitioned to have this corrected since this fell into the Clean Water Act while the pesticide industry wanted more leniency. The court ruled that the EPA’s Final Rule was not a reasonable interpretation of the Clean Water Act and made NPDES permits a requirement for pesticide disposal. This shows that no one is above the standards set by the Clean Water Act.

Massachusetts v. EPA, 549 U.S. 497, 2007

Similar to National Cotton Council v. EPA, groups such as environmental organization and state governments, brought an action against the EPA for not regulating the carbon dioxide emission for cars and trucks when it has such a negative effect on the environment. They felt it was the EPA’s duty to protect the environment from their effects. The EPA argued that they did not have the right to regulate this under the clean air act. The Supreme Court ruled that the EPA needed to prove that these gases do not affect the environment, or they needed to state the reasons they were not able to limit the pollution. This case showed that the government is responsible in helping create a better environment and that we must try to limit carbon dioxide emission which affects all industries since they all use some sort of transportation even if it’s just for delivery of supplies.

Foreign Laws

As seen by the different international agreements, many countries around the world also have a vested interest in the environment since it creates an impact on everyone and can affect their way of life. Countries like Kenya, Rwanda, Morocco, France, and Taiwan have bans on single use plastic. Penalties include things like being jailed for up to 4 years and being fined up to $40,000. Currently 127 countries around the world either have or are working toward plastic bans. Other cities in the world have taken it as far as to ban cars even if it’s just for one day a week since they have had such a large impact on pollution. Some countries even passed laws giving people access to environmental information from the government and allow them to challenge government decisions they feel violate environmental rights. The European Union has a ban on toxic pesticides while the US bans certain pesticides when they see a clear link between the use of that pesticides and health (Day Translations, 2019).

Recommendations

“In the United States alone, 43 million tourists consider themselves to be eco tourists (Alexander, 2002).” That means that 43 million people that bring in revenue are trying to travel in a way that doesn’t cause too much damage to the planet. Since this is such as large growing trend many companies have started to develop environmental sustainability strategies. That means that hospitality managers must try to be as eco-friendly and conscious as possible and be aware of the impact they are having on the environment since it is a growing global concern. There are companies that are finding ways to involve guests as well in their initiatives to do better by helping resorts waste less energy and water. That way guests feel like they are also making a difference. They must implement policies that help the environment or at least limit the damage. They must also be aware of any permits they require to do business or dispose of waste in order not to get fined or sued.

Not implementing environmental sustainability strategies can have a negative impact on a company. A lot of people know especially newer generations are very conscious about environmental issues so companies not showing to be environmentally conscious they could very well lose business. “There is now a clear and direct line from a company’s ESG performance to cost of capital, profitability, and share-price volatility (Norton, 2020).” This shows that companies with better ESG risk profiles are doing better than companies with low ones. ESG profiles consist of a company’s environmental, social, and governance factors. This shows that the general public cares if a company is thinking of factors other than just its own profit margins. Negative press is something companies want to avoid because at the end of the day reputation can have a huge impact on their bottom-line. It is important that we are all aware of the impact our actions can have and how we can help.

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An Analysis of Food and Wine Festival Liability

Introduction

When hosting events such as food and wine festivals, it is very important for organizers to consider many factors. First, they must consider a venue and what all will be necessary to make the venue work for the event’s needs. Next, the organizer must find vendors for the festival. This will typically include vendors from various wineries, and even local breweries, along with some food trucks or other restaurants. An added bonus for these festivals is the addition of entertainment and vendors with non-consumables. When adding all of these variables together, event organizers are faced with large-scale events that can be quite enjoyable for attendees. The problem for organizers, however, is that these festivals can also lead to legal action in the case of anything going wrong. This paper aims to uncover some of the liability issues that may arise during the production of food and wine festivals.

An Overview of Food Liability

There are a number of aspects by which a liability claim could be brought against restaurants and food vendors. The majority of the time when a claim is being brought against a restaurant or another aspect of the food production chain, it is the result of a foodborne illness. Additionally, claims may arise if a consumer experiences harm as a result of consuming an allergen. When it comes to food liability cases, negligence claims are the most common type of claim. Under these circumstances, a defendant may be liable for a defendant’s medical expenses, permanent injury, or even loss of enjoyment of life (Thomas, 2020).

Food Sales

When it comes to food liability, the seller of the food is liable for any damages to the consumer if the food makes the consumer ill. Within the chain of production for the majority of restaurant food products, there are many steps by which contamination can occur. The chain of production includes growers, packagers, transport, distributors, retailers, and finally the consumers. If a consumer comes down with a food-borne illness as the result of consuming a food, it is the responsibility of any step in that chain of production to prove that they received damaged or contaminated food. At that point, the point in the chain by which the food was damaged would be considered liable (Thomas, 2020).

Allergens and Food Damages

Another point of vulnerability when serving or selling food to consumers is the possibility of food allergens. The most common food allergens include eggs, milk, soy, fish, shellfish, groundnuts, and tree nuts. If a food contains any of these items, it must be listed on the food packaging. When there is no packaging involved, it can be very important for sellers to make consumers aware that a food may contain a specific allergen. If a seller isn’t aware of a consumer’s food allergy, then the seller may not be held liable for any reaction or damages that the consumer may face as a result of the food consumption. For the sake of being safe, however, servers should always ask guests about any food allergies that they have. When it comes to a food festival, it is often the safest bet for a seller to avoid selling foods with common allergens, unless they are able to provide all guests with information regarding the allergens in the dish. It should be noted that the same principles apply when it comes to a consumer’s food restrictions. If a guest is prohibited from eating a specific food, albeit for religious, medical, or other reasons, then a seller must ensure that the guest is safe from these foods if they have knowledge of the restrictions (Thomas, 2020).

Raw/Undercooked Foods

One highly common cause of foodborne illnesses is the consumption of raw or undercooked foods. This type of food consumption is especially dangerous for those with preexisting medical conditions. If a restaurant serves any foods raw or undercooked, it is the standard of the restaurant industry to provide all guests with warnings regarding the dangers of consuming foods that have not been cooked to full temperature. Failure for a restaurant to do so would constitute negligence and would make the restaurant liable to a consumer who falls ill as a result of that food consumption (Thomas, 2020).

When considering foodborne illnesses, it is important to note some of the most common illnesses: staphylococcus, E. coli, salmonella, and Hepatitis A. These illnesses are either caused by a virus, bacteria, or other parasites that can be found in food products. The microorganisms are introduced to food products when they are not handled or prepared properly and can cause many symptoms from nausea, vomiting, diarrhea, and fever to various organ problems and can even lead to death (Canwest News Service, 2010). In fact, the Center for Disease Control (CDC) estimates that approximately 76 million cases of foodborne illness occur each year, with these cases leading to around 325,000 hospitalizations and approximately 5,000 deaths (Holt, 2008).

A couple of notorious instances of foodborne illnesses were incidents of an E. coli outbreak and a Hepatitis A. E. coli is one of the leading causes of foodborne illness. Although it is naturally found in the intestines of farm animals, it is introduced to humans when they consume raw or undercooked foods and can make them very ill. In 2006, spinach from a food producer called Natural Selection Foods, LLC led to a large outbreak of E. coli in Wisconsin and Oregon. When investigating the cause of the illness, it was found that the spinach was contaminated with cow feces. A similar outbreak of Hepatitis A occurred in Pennsylvania in 2003, when contaminated green onions were served at multiple Chi-Chi’s restaurant locations. Cases of foodborne illness are currently decided upon based on product liability laws, which state that a plaintiff must prove that a food product that they consumed was contaminated and that the harm suffered by the plaintiff was directly caused by the consumption of the product (Holt, 2008).

An Overview of Liquor Liability

Any seller of alcohol must always be aware of all laws and regulations regarding the sale of alcohol. Additionally, they should be knowledgeable of the many circumstances under which they could be held liable should the sale of alcohol lead to danger or harm to another person. When a food and wine festival is underway, there are multiple sellers of alcohol who must be sure to do so responsibly, as failure to do so could lead to a negligence claim (Thomas, 2020).

Dram Shop Laws

Alcohol laws differ from state to state and country to country. In the United States, however, the majority of states have adopted dram shop laws. Dram shop laws create liability for sellers of alcohol that go further than simply negligence for matters of public policy. These laws are created to protect members of the general public from those who drink too much and may cause harm or injury to third parties as a result of their alcohol consumption. Therefore, dram shop laws create a link between alcohol sellers and the third parties who have experienced damages. In most states, there are three categories by which dram shop laws create liability issues for alcohol sellers: minors/those under 21 years of age, those who are already intoxicated or under the influence, and known alcoholics. If any seller of alcohol sells to someone that falls under these three categories, and that person should go on to cause harm to a third party, then the alcohol seller will be held strictly liable to anyone injured. If the person who consumed alcohol is a minor or underage, then the alcohol provider would additionally be liable to the underage person. It should be noted that this is one of the only scenarios in which the drinker is protected from the seller (Thomas, 2020).

Social Host Liability

An additional factor related to potential liability issues with the sale or service of alcohol is social host liability. Under social host liability, any adult who serves or provides alcohol to minors or to other persons who are clearly intoxicated can be held liable if the drinker is killed or injured or kills or injures a third party. In states where this is the law, this liability issue should be of particular interest to all event organizers who plan events where alcohol is served. Even if the organizer has not served the alcohol themselves, they may still be liable if it can be proven that they are the host of the event (Thomas, 2020).

An Overview of Event Liability

When planning events, there are many legal laws and regulations that must be considered. For example, there are various permits that must be procured prior to the event based upon some event specifics. A special event is defined by Mckellar (2019) as “any licensed transitory public gathering that takes place at a given location for a specific purpose that is self-limited in connection with a fair, carnival, circus, public exhibition, celebration, tasting event, or trade show. Any event cannot exceed 14 days’ time.” Under this definition, a food and wine festival would certainly be considered a special event.

Rules and regulations governing special events vary from state to state, and around the world as well. In general, however, the necessary permissions and regulations are similar from one place to another, and information regarding requirements for hosting events in a specific location can generally be found on that location’s official website. In Nevada, for example, some of the permits necessary to hold a festival include a Temporary Membrane/Building Structure/Tent-Outdoor-Fire Department Permit if a tent larger than 400 square feet is to be erected on the location premises. Additional permits would be necessary for added entertainment such as fireworks or animals. Special event permits are a requirement almost everywhere in order to hold a large festival. In most locations, these permits can be found on a location’s official website as well and should be turned in well in advance of the event.

When food and alcohol is to be served at a special event, additional permits become necessary. First, the organizer of the event is required to obtain an event coordinator permit, and the event coordinator is required to turn in and confirm all other permits in advance of the date of the event. Other permits necessary include temporary food establishment permits, special event liquor licenses, and a health permit for the special event. It should be noted that most food trucks will already be in possession of temporary food establishment permits and should not be permitted to participate as a vendor at an event without furnishing proof of their possession of the necessary permits. When hosting a food and wine festival, therefore, all of the above permits will be required in order to ensure event compliance with local regulations (Mckellar, 2019).

Thaddeus Segars v. Hilton Head Wine and Food, Inc.

In 2006, Sea Pines Resort hosted the 31st annual Hilton Head Wine & Food Festival. Thaddeus (Tad) and Kellie Segars attended the festival, and during the course of the festival., Tad was brutally assaulted by an intoxicated attendee. The attack left tad with a broken jaw and detached retina. As a result of his injuries, Tad suffered complications with working and overall quality of life. Tad’s attacker was heavily intoxicated, leading Tad to sue the attacker, festival, venue, and security company for the venue. If each of the aforementioned parties had met their duties of care, the attacker would not have been permitted to drink to the point of such intoxication that he caused physical harm to others. This kind of behavior is exactly the kind of behavior that dram shop laws are implemented in most states to protect third parties against. While South Carolina does not have dram shop laws, however, it was still within the realm of the duty of care of festival staff, venue staff, and the security company to ensure the safety of festival attendees. Their negligence in allowing Tad’s attacker to be continuously served alcohol beyond the point of intoxication is a failure to meet this standard of care. The interesting thing to note, however, is that the lawsuit was not filed against any specific winery that was serving or selling wine at the festival. Instead, the lawsuit was filed against the entire festival (Kokal, 2019).

Analysis and Management Suggestions

It is important to consider food, alcohol, and event liability issues separately in order to truly understand the plethora of issues that could arise from the ill-planning of a food and wine festival. Not only are festival organizers faced with potential food liability issues but adding on alcohol and additional special event rules and regulations present added complications. To further complicate things, festivals are typically quite large-scale which further adds to the complexity of the event and the many legal issues that must be considered.

As an event manager, there are many factors that must be considered in order to protect myself and others from liability issues that may arise as the result of the production of a food and wine festival of any scale. One of the largest takeaways, in my opinion, is the need for a comprehensive liability insurance policy on every event. Not only should I have liability insurance as an organizer, but I should also require proof of liability coverage by any and all vendors that I may hire to assist in the production of the event. With the many things that could go wrong, it is best to always be safe when planning events and ensure that you will be protected against any personal or business liability should complications arise.

Even with liability insurance, however, it is best to do all that you can as an event organizer to avoid any legal issues from the beginning. To do so, managers must choose vendors and enter into all contracts with utmost caution. Vendors should not simply be chosen based upon their cost or a particular amenity that they have to offer. It is an event managers responsibility to conduct research on all vendors prior to making vendor choices. Only once the event manager is equipped with all necessary information about vendors should they consider entering into a contract with them. All contracts must be carefully analyzed, adapted, and suited for the specific event at hand.

In addition to selecting reputable vendors for any event, event managers must also ensure that all persons working at the event are properly trained in any areas in which they will be working. If they will be working with food sales, then they should be trained in proper food preparation and service in order to ensure that they follow all necessary precautions to avoid any food liability. If a worker will be handling alcohol sales, then they must be fully trained on all rules and regulations regarding the sales of alcohol. This is especially important, as alcohol laws vary considerably from state to state. Therefore, staff serving or selling alcohol must be aware of alcohol laws for the particular location in which the event is taking place, and being informed about surrounding areas is also a good idea as well.

Within the hospitality industry, there are various standards of the industry that come with duties of care that all businesses owe to their guests. Hotels have a duty of care to ensure that they provide guests with clean and safe lodging during the duration of their stay. Event venues have a duty of care to ensure the safety of events from violent or other terroristic acts. Food retailers have a duty of care to sell food that is fresh and has not been contaminated. And alcohol sellers have a duty of care to protect the general public by only selling alcohol responsibly. Organizers of a food and wine festival must consider all standards of the industry and ensure that they are showing all patrons the duties of care that they are owed.

References

Holt, A. (2008). Alternative liability theory: Solving the mystery of who dunnit in food-borne illness cases. Pittsburgh Journal of Environmental and Public Health Law. (March 11, 2010 Thursday).

Food-borne illness: protecting your family against food poisoning. Canwest News Service. https://advance-lexis-com.ezproxy.fiu.edu/api/document?collection=news&id=urn:contentItem:7Y0F-2MW1-2SFB-50VR-00000-00&context=1516831.

Kokal, K. (2019). 2 lawsuits filed after punches thrown at Sea Pines festival. Here’s where they stand. The Island Packet. Retrieved from https://www.islandpacket.com/news/local/crime/article229900489.html

Mckellar, M. ESQ. (December, 2019). ARTICLE: VEGAS LOVES FESTIVALS. Nevada Lawyer, 27, 24. https://advance-lexis-com.ezproxy.fiu.edu/api/document?collection=analytical-materials&id=urn:contentItem:5XPT-SM41-DXHD-G000-00000-00&context=1516831.

Thomas, J. (2020). Food and alcohol liability. Personal Collection of J. Thomas. Florida International University, Miami, FL.

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Dram Shop Law

Abstract

The purpose of this text is to gain a true understanding for Dram Shop Law liabilities in a general aspect, but also more in depth when it comes to the specifications regarding the State of Florida. The history and breakdown of Dram Shop Law will be thoroughly explained along with specific examples of cases that have occurred within the State of Florida.

Background and explanation of Dram Shop Law in a general aspect

Dram Shop Law otherwise known as Dram Shop Liability Statute is currently applied in 43 states across America. The eight remaining states who do not follow these laws are the following- Delaware, Louisiana, Maryland, Nebraska, South Dakota, Virginia, Nevada, and Kansas. The name Dram Shop Law was created in England during the 18th century when alcohol such as gin was sold in units measured in “drams” in bars and taverns. Dram Shop Liability is a civil liability that can be put on a person or establishment that sells or serves liquor if injury occurs. Each state as an individual implements their own Dram Shop Laws based on how liable they want to hold the person of action accountable for. The same scenario applies if a business or persons willingly provides an intoxicated person, a person with a drinking problem, or a minor alcohol where the provider is held liable if an injury occurs.

As mentioned, each state varies on their own version of Dram Shop Laws. Some states have a strict time limit that a claim can be made within, such as Florida allowing only four years from the incident, or in other states only 60 days. Social Host liability also ranges where the host of a private party or event would be held liable for serving a minor or someone who ends up in an accident due to their intoxication (Drews, 2019).

Dram Shop Law in reference to the state of Florida

Dram Shop Law varies widely with each state across the United States having their own specifications. In 1962, the Florida Supreme Court acted as the third jurisdiction to take the original common law which would allow some negligence claims to be made against vendors of alcohol that the sale could be the cause of an injury (Drews, 2019). Within two years after the twenty-first amendment was made, The Florida Legislature repealing prohibition was ratified, which is now section 562.11, making it an illegal crime to sell alcohol to a minor. (Migliore v. Crown Liquors of Broward, Inc., 448 So. 2d 978, 1984 Fla. LEXIS 2728). The state of Florida Dram ShopLaw falls under Statutes Section 768.125 which enables a person who was injured in a car accident that was caused by an impaired driver to sue a bar or any other establishment that directly sold them or provided them with alcohol (Weber & Prado, 2019). Florida Statutes section 768.125 Liability for injury or damage resulting from intoxication directly states,

“A person who sells or furnishes alcoholic beverages to a person or lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the  intoxication of such person, except that a person willingly and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.” (The Florida Statues, 2020).

Therefore, in layman’s (“lay”) terms it is only allowed that a person can sue a bar or establishment if alcohol was served to a habitually addicted adult or a minor under the legal drinking age of 21 years old. Hosts of social gatherings cannot be held responsible for damages caused by alcohol that was served within a private party or event, even if the guests are habitually addicted individuals, but, the host can be held liable for serving alcohol to a minor.

Although, they may still face charges or penalties such as getting their license revoked for a specified period of time. In order to make a Dram Shop claim in Florida the injured person must make the claim within the required four years from the date of the incident, if and when the statute of limitations runs out during this time period, the victim of the incident will be barred from suing the bar. In most scenarios when it comes to Dram Shop cases the claim against the bar or establishment falls under negligence, therefore, it must be proven. There are four required elements that the victim must be able to prove:

  1. Duty of care
  2. Breach of Duty
  3. Causation
  4. Damages as a result of injury with the addition of evidence of all.

Complications often arise when it comes to Dram Shop cases, especially when it comes to providing evidence. It can often be a challenge to prove that the person or persons at fault are a habitual drunk, to go even further; to prove that those who served the alcohol to this person was aware that they were a habitual drunk is even more of a task. There are a handful of reasons why one might seek compensation while filing a Dram Shop claim, such as, for medical bill coverage for any or all of their injuries including their hospitalization fees, medication and rehabilitation charges. As well as, any wages they might have lost due to not being able to work, replacement costs for damaged or destroyed property, and pain or suffering they might have faced during their recovery (The 2020 Florida Statutes 2020

History of Dram Shop Law and case examples

Despite the Laws in place in Florida when it comes to Dram Shop, there have been countless cases and suits about the matter. In Migliore v. Crown Liquors of Broward, Inc. 448 So. 2d 978 liquor was sold to a minor which is someone who is stated to be under the age of 21 in this region. It is also said that serving or selling alcoholic beverages to a minor is an obvious foreseeable risk of the minor’s intoxication and injury to themself or a third person also seen as negligence, therefore, they were to be considered in the class of persons to be protected by the legislation. In this case, the court ultimately determined that the respondent liquor store was indeed liable for the petitioner that was injured as a third party, due to the fact that they were injured or killed by an intoxicated minor who was illegally sold alcohol.

On December 2, 1978, Frank Milgliore, was riding passenger side seat in an automobile that was struck by another automobile that was being operated by Bruce Gahring, a seventeen year old boy. Milgliore filed the suit stating that Crown Liquors of Broward County sold alcohol to the minor Bruce Gahring failing to ask for identification during the purchase of large amounts of alcohol. Therefore, this was further a concurring and contributing factor playing a critical role in the leading up to the accident and the injuries that Milgliore later faced that evening on the highway. Crown Liquors fired back stating that with a summary judgement on the grounds that Milgliore had no cause of action against them for their sale of alcohol to gahring , claiming that the record contained no evidence showing that the sale constituted a proximate cause of the accident that evening. This led the trial court to grant this motion and entered summary judgement in favor of Crown Liquors.

Milgliore appealed to the Fourth District who stated that the summary judgement and agreed with Crown Liquors that Section 562.11 in fact does not extend liability to the injured third parties. In reference to a previous case that occurred Prevatt v. McClennan, 201 So.2d 780 (Fla. 2d DCA 1967) contrary to the Fourth District’s holdings, section 768.125 creates a cause of action for the third persons against dispensers of those intoxicated whom are minors, therefore, it is a limitation on the liability of vendors of alcoholic beverages. Section 768.125, Florida Statutes 1981 stating:

“A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for [*981] injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.” Migliore v. Crown Liquors of Broward, Inc., 448 So. 2d 978, 1984 Fla. LEXIS 2728

Based on this statute and the references to the Prevatt v. McClennan case, the Fourth District must adopt the Second District’s holdings and remand further proceedings that are consistent with this decision. In an unassociated case that contained different circumstances, Mary Evelyn Ellis, a mother, filed a suit claiming that her son, Gilbert Ellis, was an alleged habitual drunkard who consumed multiple drinks at a local bar in Tampa, Florida. After leaving the property following the consumption of a few drinks, he was involved in an automobile accident where he overturned and crashed his car leading to extensive injuries including permanent brain damage. The trial court granted the respondents’ motion but did not provide a specific cause of action since these circumstances were alleged and not proven at the time. A claim of ordinary negligence under chapter 768.125 did not require the establishment of the elements of a criminal offense under chapter 562.50.

The outcome of this case was finalized with the court’s decision to quash the lower appellate court’s decision and remanded for further proceedings. The case concluded that a person who knowingly served a person habitual drunkard alcohol may become liable for injury caused by or resulting from their intoxication. The legislature on the case used the word “knowingly”, in the statute, a claim of ordinary negligence did not require the business of the elements of a criminal offense under chapter 562.50 since the establishment had no prior written notice of Gilbert’s alleged addiction. This ties into previously mentioned difficulties that are often run into in court when it comes to Dram Shop Lawsuits, until it is proven in court that negligence did knowingly occur, suits will often be dismissed. Otherwise, there is no proof that the persons who served the alcohol were aware of the alleged addiction that the guest had.

Management Suggestions

As a future manager in the Hospitality Industry, it is of the utmost importance that Dram Shop Law be well known especially in the state of Florida. Any establishment that owns or operates a business that involves the sale or providing of alcohol should be extremely careful to be as preventative as possible when it comes to the sales to their guests and the consumption of them. From a management point of view, from the now knowledge that has been obtained while writing and doing research for this paper, it has become very evident that little mistakes or small instances of negligence can have very serious consequences. Training staff and managers is to be taken seriously from the onboarding processes of new staff. If staff was to be unaware of the certain laws that the state places when it comes to Dram Shop they will not only unknowingly break laws, but they will be unable to prevent any accidents or situations that can ultimately lead to harm of third parties, the business, and the person of intoxication.

Having standards set in stone in every business when it comes to protocols is very important. For example, those serving alcohol should be aware of how to identify a fake Identification card that a minor might walk in with and try to consume or purchase alcohol with. Regulations when it comes to how many drinks per hour a guest should consume should also be made aware in order to avoid accidents. In addition, note should be taken if someone becomes a known habitual drunk at the establishment, whether it be at a bar, a restaurant, or a liquor store of any sort.

Conclusion

In conclusion, Dram Shop Law is a very diverse law that varies state by state depending on their specifications. In the Hospitality Industry, there is a lot of sales and consumption of alcohol, therefore, in every state each establishment should make their employees aware of what to look out for and how to prevent running into any issues with Dram Shop Law or negligence. Major takeaways from this research are the associated Dram Shop Laws that directly correlate with the state of Florida, since that is the current state of residence. Including, the four required elements that the victim must be able to prove: 1. Duty of care 2. Breach of Duty 3. Causation 4. Damages as a result of injury with the addition of evidence of all. Along with the four year time limit that a claim must be filed within from the date of the incident.

References

Drews January 7, M. D. (2019, January 03). Liability or Lack Thereof Under Florida’s Dram Shop Statute. Retrieved December 02, 2020, from https://www.tysonmendes.com/liability-lack-thereof-floridas-dram-shop-statute/Ellis v. N.G.N. of Tampa, 586 So. 2d 1042, 1991 Fla. LEXIS 1625, 16 Fla. L. Weekly S 619

Florida Dram Shop Law. (2017, March 14). Retrieved December 04, 2020, from https://www.lorenzoandlorenzo.com/personal-injury-guide/florida-dram-shop-law/

Migliore v. Crown Liquors of Broward, Inc., 448 So. 2d 978, 1984 Fla. LEXIS 2728

The 2020 Florida Statutes. (2020, December 04). Retrieved December 01, 2020, from http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute

Weber, P., & Prado, D. (2019, June 18). Dram Shop Laws. Retrieved December 01, 2020, from https://www.findlaw.com/dui/laws-resources/dram-shop-laws.html https://www.pwdlawfirm.com/personal-injury/does-florida-have-a-dram-shop-law-to-sue-a-bar-for-a-drunk-driving-crash/

Assaults on Cruise Ships

A quick weekend trip, a family reunion, a well-deserved holiday, a dream vacation, are all reasons to plan a cruise. The advertisements are professional and polished and showcase the best aspects of cruising. The crew is depicted in uniform, smiling and attentive; the captain and first officers appear to be in full command of the floating city; the passengers, of all ages, are smiling, laughing, and engaged in one or more, of many activities offered onboard or offshore.

The ads appear welcoming and portend a great trip, that is until something goes awry. The brochures do not depict just how unfriendly and uncooperative the cruise lines can become, if your cruise experience is the one that is shattered because of a criminal assault. If you are the one, out of thousands, whose trip is ruined, what recourse do you have and what remedy should you expect?

In July 2010, in order to establish a uniform standard of regulations and rules, for the cruise industry, the Cruise Vessel Security and Safety Act (CVSSA) was enacted. This legislation was a direct result of the perception that cruise lines were underreporting serious crimes and or in the least, not properly documenting reports of crimes. “The law mandated that cruise ships are required to report serious crimes which include: suspicious deaths, homicides, assaults that cause bodily injury, and sexual assaults to the FBI.” (H.R. 3360: Cruise Vessel Security and Safety Act – gop.gov, 2020) In the event there is money theft, it must be in an amount of more than US $10,000 before a formal report is filed. For any other crimes that occur, the cruise line is allowed to resolve them internally, without any public reporting required. It goes without saying that there are many victims of cruise ship crime who will not see justice.

“Maritime law is what binds cruise ship operators and holds them liable for intentional criminal acts committed by employees, sexual assaults and other crimes.” (Bratslavsky, 2019) The CVSSA, of 2010, provided more relief for victims of cruise ship crimes. It somewhat loosened the vise grip cruise lines previously had, over admitting fault and paying compensation and/or damages. Still, a victim of assault (sexual or otherwise) should immediately notify the authorities on the ship. They, in turn, are required to report all such incidents as they are considered serious crimes.

Cruise ships are large and are able to accommodate thousands of guests at once, making it seem like an impossible task to police and keep secure all areas of a ship. Relative to a small city, however, which may be sprawled out, a ship is confined to a limited geographic environment. It consists of decks, cabins, and common areas. It has entertainment showrooms, kitchens, and dining areas, as well as, operations and machinery zones and crews’ quarters. The other thing, of which there is an abundance, is surveillance cameras: they are almost everywhere on a ship.

These surveillance cameras are recording all of the time and as such, can potentially, offer a video record of criminal acts. The footage, however, belongs to the cruise line and it can be difficult to obtain. Another noteworthy consideration is that there is no mandate in place that requires a live person to monitor the surveillance that is occurring 24/7. Crimes and video surveillance occur in real-time. However, real-time monitoring, conducted by ship’s personnel, often does not occur in real-time. Hence, the crime will always be something that is investigated after the fact, instead of having been prevented in the first place by surveillance monitors.

The U.S. House of Representatives introduced a bill, in November 2019, the Cruise Passenger Protection Act (CPPA). If enacted, “this legislation will strengthen the existing CVSSA, by requiring cruise lines to notify the FBI within four hours of an alleged serious crime.”(H.R. 5096: Cruise Passenger Protection Act -congress.gov) This law will mandate that cruise lines indicate if alleged crimes were committed against juveniles. It also would require that incidents are reported when they occur in port, before the ship leaves the port. If the ship leaves port before being notified, of an alleged incident that happened in a U.S. port, then the ship must report it to the U.S. Consulate in the very next port of call. Further, this legislation mandates that ships have video surveillance in all common areas. CPPA will “require improved medical standards and aims to hold the cruise lines responsible for deaths, sexual assaults and violent crimes at sea.” (CPPA, 2020)

“Crimes on cruise ships, committed against juveniles, account for one-third of all reported incidents, according to the FBI.” (Cruise Guide, 2019) There is a sense of security aboard a cruise ship and children also have an inherent tendency to trust adults. Combine that, with the excitement of cruising and the unusual freedoms afforded them on cruise ships, and the potential for criminality increases.

In the case of K.T. vs. Royal Caribbean Cruises LTD, K.T., the minor plaintiff, alleged she was raped by a group of adult male passengers, on the first night of the cruise. The men plied her with alcohol and eventually led her to a cabin where she was both assaulted and gang-raped. She filed suit alleging that Royal Caribbean was negligent for failure to warn passengers of the danger of sexual assault on a cruise ship, and for failing to act to prevent the assault. The district court dismissed the complaint about the failure to state a claim.

However, on appeal, “the Eleventh Circuit reversed and held that the complaint sufficiently alleged that because Royal Caribbean’s crewmembers did nothing to prevent the large group of men from plying plaintiff with enough alcohol to incapacitate her and did nothing to stop those men from leading her away to a private cabin, Royal Caribbean breached the duty of ordinary care it owed her. Furthermore, but for Royal Caribbean’s breach of its duties of care to the plaintiff, she would not have been brutalized and gang-raped.” (K.T. v Royal Caribbean, 2019)

So, what do you do if you are the victim of a serious crime on a cruise ship? There is no formal law enforcement onboard these ships, only security personnel, and conflict resolution is the usual operating standard when they are confronted with a problem. The limitations of these security officers are further exacerbated if the alleged incident involves a ship’s personnel where a definite conflict of interest is present. Furthermore, the ship’s security officers are the only ones who investigate a crime while the ship is at sea and until it docks in a port.

There are many regulations and restrictions in place and a strict statute of limitations, which may affect a victim pursuing a claim against a cruise line. “It is important to file a claim within the specified period of time or the right to do so will expire.” (Malkin, 2019) One must first file a claim that outlines the nature of the complaint, along with a party’s intent to file suit. The filing of the subsequent suit must occur within one year of the time of the alleged incident, and it must be brought to the proper venue. Notice of claims and lawsuits must be filed timely or the dismissal of the said claim is foregone.

The victim will need the services of a lawyer to help prove a case that the cruise line is liable. Were there previous warnings about a passenger or crew member that the ship ignored? Were there dangerous conditions that led to an assault? Was the assault triggered by excessive alcohol consumption or drug use? There is often excessive drinking on cruise ships but there is also an excessive serving of alcohol aboard cruise ships, too. There are no Dram Laws in place aboard cruise ships. If a passenger can prove that she was intentionally overserved alcohol or that the staff knew the passenger was underage and still served her more, that helps the case.

If a passenger is assaulted on a ship, there are measures that need to be taken immediately thereafter:

  • Do not bathe or take a shower until after you have been examined by medical personnel. Keep your clothing/bedding in a paper bag until the FBI or Coast Guard arrive on the scene.
  • Immediately report the assault to the ship’s security.
  • Seek treatment of physical injuries by the ship’s infirmary and have a rape kit examination, if possible.
  • Report the assault, via telephone, to the FBI and the U.S. Coast Guard immediately.
  • Record the names of the perpetrator(s), ship’s security officer(s), witnesses.
  • Record the contact information for anyone who may have heard or seen the assault (cabins next door, for instance).
  • Take photos of any injuries sustained and of the scene of the assault, if possible. When arriving at the next port of call or your home port, the FBI and/or local lawenforcement should be there to meet the ship. You should then seek treatment at the nearest rape center.
  • Seek legal counsel from lawyers who specialize in cruise ship law. It is not enough to hire local counsel because of the restricted time frames and venues for filing. (Leesfield, 2020)

The dream of a luxurious cruise or the excitement of a fun weekend jaunt on a cruise ship remains the highlight of many vacationers. There are those, too who have yet to set sail, but long to do just that. Thousands of passengers embark and disembark cruise ships and they return home with beautiful photos, suntans, souvenirs and fabulous memories. However, for some, becoming the victim, whilst on a cruise, is a nightmare from which many have difficulty in removing from their psyches.

Knowing exactly what precautions to take, prior to boarding, can reduce the chances of becoming such a victim. Cruisers need to understand what rights are afforded to those who purchase tickets. It is important to refrain from excessive alcohol consumption and of letting one’s guard down, so much so, that one is put more at risk for the potential of assault or other crime being perpetrated against you.

In addition to the contractual agreement on the ticket, the parties are subject to maritime law, which is different than the laws followed on land. Maritime law encompasses all activities, offenses and crimes that occur on water vessels. If you do become the victim of a crime, follow the guidelines listed above and be sure to retain good legal counsel upon your return home.

Lawmakers continue to make progress to help strengthen passengers’ rights aboard cruise ships and to rightfully increase cruise ships’ liability when it is proven they are at fault by failing to provide reasonable care. Passengers need to hold these lawmakers to account to ensure that they have all of the legal protections afforded to them to prevent criminals from getting away with the seemingly perfect cruise ship crimes.

References

Bratslavsky, Andrew. “MANDATORY ARBITRATION OF SEXUAL ASSAULTS IN MARITIME LAW.” St. Thomas Law Review, vol. 31, no. 2, Spring 2019, p. 198+. GaleAcademic OneFile Select, https://link.gale.com/apps/doc/A613923761/EAIM?u=miam11506&sid=EAIM&xid=6cb7c30c. Accessed 1 Dec. 2020.

Congress.gov.2019. H.R. 5096: Cruise Passenger Protection Act – Congress.Gov. [online] Available at < https://www.congress.gov/bill/116th-congress/house-bill/5096/all-info/> [Accessed 10 December 2020]

“Cruise Ship Sexual Assault Cases Reportedly on the Rise.” Cruise Guide, 1 Dec. 2019, p. NA. Gale Academic OneFile, https://link.gale.com/apps/doc/A618527055/AONE?u=miam11506&sid=AONE&xid=5fccc5ca. Accessed 1 Dec. 2020.

Davis, J. B. (2020, Jun). ROUGH SEAS. ABA Journal, 106, 34-39. Retrieved from http://ezproxy.fiu.edu/login?url=https://www-proquest-com.ezproxy.fiu.edu/magazines/rough-seas/docview/2425609820/se-2?accountid=1090110gop.gov. 2020. H.R. 3360: Cruise Vessel Security And Safety Act – Gop.Gov. [online] Available at: <https://www.gop.gov/bill/h-r-3360-cruise-vessel-security-and-safety-act/> [Accessed 10 December 2020].K.T. v. Royal Caribbean Cruises, Ltd., 2020 U.S. Dist. LEXIS 51354 (S.D. Fla. 2020)

Leesfield, Ira H., and Adam T. Rose. “Assault at Sea: Here’s an overview of what claims to pursue and what to seek in discovery when your client was sexually assaulted on a cruise ship.” Trial, vol. 56, no. 7, July 2020, p. 40+. Gale Academic OneFile Select, https://link.gale.com/apps/doc/A631438725/EAIM?u=miam11506&sid=EAIM&xid=0ab63 93f. Accessed 1 Dec. 2020.

Malkin, E. (2019, April 19). Report of Sexual Assault on Cruise Ship Shows Gaps in International Law. Retrieved December 01, 2020, from https://www.nytimes.com/2019/04/19/us/cruise-ship-crimes-laws.html

“Sexual Crimes on Cruise Ships: A Historical Perspective on Security Issues for Passengers andCrew,” Tourism and Society: A Socio-Economic Perspective (ed. A. Pappathanassis), Heidelberg: Springer Verlag, pp. 141-151. Transportation.gov. 2020. Cruise Line Incident Reports | US Department Of Transportation. [online] Available at: <https://www.transportation.gov/mission/safety/cruise-line-incident-reports> [Accessed 1 December 2020].

Cruise Passengers Lost Overboard

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Cruise Passengers Lost Overboard

Contents

SECTION I – LEGAL ISSUES. ….2

Federal Statutes…… 2

State Statutes. ….4

Federal/State/Local Regulations….. 4

SECTION II – ANALYSIS….. 4

Critical Thinking…… 4

Legal Standards…… 5

SECTION III – MANAGEMENT SUGGESTIONS. ……5

Relation to Real Life Experiences….. 5

Discussion of Legal Issues from Management Review…. 6

References….. 7

SECTION I – LEGAL ISSUES

Topic

Cruise ship passengers overboard are not common. Since this can happen all over the world, there isn’t a specific statistic compiled by the United States government. Although, there are about 20 incidents a year (Faust, 2020). Many would think people always die when they go overboard but the truth is that it depends on several factors. These factors include the person’s impact on the water and the injury caused by that and also how quickly they are rescued by the cruise crew members or the Coast Guard. More times than not, the person dies before they reach the water (Faust, 2020). If there is inclement weather, it makes it tough for the person to swim as well as for the staff to find them.

Typical overboard accidents are caused by different causes. Defective handrails, dangerous pathways, failure to warn of rough weather conditions, and intoxication. The company is held liable if any of these things are the cause of an overboard accident. The company would have failed to be negligent, even with an intoxicated passenger who fell overboard. It is the duty of the crew members to not continue serving highly intoxicated passengers as there is major risk for injury or even death (Lee, 2019).

When a crew member or passenger is overboard, the ship has the duty and obligation to do everything they can to rescue them. As soon as the incident occurs, the ship crew stops and turns back to the area where it happened. They then perform a lengthy search and rescue operation that sometimes can last several hours. The captain also notifies also ships in the area which are also obligated to help and local maritime authority, like the Coast Guard (Faust, 2020).

It is important to note, that not all overboard situations happen at sea. Some situations happen once the ships are docked in one of the destinations.

http://cruisebruise.com/

Federal Statutes

The United States has federal laws that command vessels to have security and safety requirements.

U.S. code 3507 – Passenger Vessel Security and Safety Requirements:

  • VESSEL DESIGN, EQUIPMENT, CONSTRUCTION, AND RETROFITTING
    • IN Each vessel to which this subsection applies shall comply with the following design and construction standards:

(A)The vessel shall be equipped with ship rails that are located not less than 42 inches above the cabin deck.

  • Each passenger stateroom and crew cabin shall be equipped with entry doors that include peepholes or other means of visual

(C)For any vessel the keel of which is laid after the date of enactment of

the Cruise Vessel Security and Safety Act of 2010, each passenger stateroom and crew cabin shall be equipped with—

  • security latches; and
  • time-sensitive key

 

  • The vessel shall integrate technology that can be used for capturing images of passengers or detecting passengers who have fallen overboard, to the extent that such technology is
  • The vessel shall be equipped with a sufficient number of operable acoustic hailing or other such warning devices to provide communication capability around the entire vessel when operating in high-risk areas (as defined by the United States Coast Guard).

These statutes are a few among many that state the importance of having proper railings and security latches. Along with the importance of having technology that will allow for instant communication. Vessels are also mandated to have technology that will detect passengers who may have fallen overboard. It is also mandated to have devices all over the vessel that have communication capability in the case that the captain needs to share an important message with passengers and crew members (Cornell, 2010).

State Statutes

Maritime laws differ from state laws. It all depends on where the accident occurred. If a person is on a cruise ship, they are more than often not under United States’ jurisdiction. This also includes when the ship is docked in another country. The person will usually be under the jurisdiction of that country. If they are in international waters, that is where Maritime laws come in (G, 2020).

Federal/State/Local Regulations

Since the year 2000, nearly 300 have gone overboard from cruises and ferries. In retrospect, this is a small margin in comparison to the millions who vacation on cruise ships every year. There is a larger issue at hand. There have many instances where families haven’t received the answers or closure they deserve. There are roughly 19 people who go overboard while aboard a cruise ship every year (Passy, 2017). Later in the analysis, the Cruise Passenger Protection Act will be discussed. This is a fairly new bill that is set to improve passenger safety laws.

SECTION II – ANALYSIS

Critical Thinking

There are many reasons why a crew member or passenger would go overboard. There have been incidents where it was an accident because they were either highly intoxicated or a hand railing was not secure, to passengers who jump willingly for a good laugh or to go on a swim like the 27-year-old passenger who jumped off the 11th-floor balcony on the Symphony of the Seas. His friends caught him jumping off the balcony on video and he admitted he didn’t think it was a big deal and did it to make his friends laugh (The Maritime Executive, 2019). Many say he is lucky to be alive. This group of men was banned from traveling on Royal Caribbean in the future. Others go overboard to simply commit suicide. There are still many questions at play and not enough answers. Cruise ship companies and families of those lost overboard have intense debates because it’s a problem that needs to be solved. Not just for those who have lost loved ones overboard and still don’t have answers but to help prevent someone from going missing overboard in the future.

Legal Standards

There is a new bill to help improve passenger safety laws. Advocates for victim’s families are working to reduce incidents and are arguing that there should be independent law enforcement agents on cruise ships. Their advocacy efforts grabbed the attention of members in congress. The Cruise Passenger Protection Act would eventually require government authorities and agencies

including the Unites States Coast Guard and the Department of Transportation. This legislation would build upon the Cruise Vessel Safety and Security Act which was signed into law in 2010 by President Obama (Passy, 2017).

The cruise line industry has not been quick to implement the advanced radar technology which can detect when an individual goes overboard and that is also something that is implemented in the Cruise Vessel Security and Safety Act (Passy, 2017).

SECTION III – MANAGEMENT SUGGESTIONS

Relation to Real Life Experiences

In August of 2004, a 40-year-old woman by the name of Merrian Carver sailed on a Celebrity Cruise that sailed from Seattle to Alaska, alone. Merrian’s daughter could not get in touch with her mother so she contacted her grandparents who had no idea she had traveled on a cruise. They filed a missing person’s report, and the police ended up finding a bank transaction that showed she had gone on a cruise. The family ended up finding out through a private investigation that the cruise ship had reported her missing, days into the voyage. Most of her belongings were tossed.  It is now 2020 and the family still has no idea what happened to Merrian after a whole year of searching for answers.

In May of 2017, an American man who was 61 years old. Went missing after going overboard in the South Pacific. A Georgia man who was 32 years old went missing after he jumped from his balcony in the Bahamas. The families have no idea what happened to these passengers (Passy, 2017). In 2017, only 3 of the 13 people were rescued alive that were found overboard.

Discussion of Legal Issues from Management Review

As a manager, it is extremely important to make sure that all of the crew members and staff are properly trained. It is also extremely important to make sure that all safety measures are taken, as simple as tightening the bolts in handrails.

It is also important to be informed of any new legislation being passed so that families feel safe and cruise ship companies save themselves from any lawsuits.

References

46 U.S. Code § 3507 – Passenger vessel security and safety requirements. (n.d.). Retrieved December 9, 2020, from https://www.law.cornell.edu/uscode/text/46/3507

Faust, C. G. (2020, February 27). What to Expect: Man Overboard on a Cruise Ship – Cruises. Retrieved December 03, 2020, from https://www.cruisecritic.com/articles.cfm?ID=2069

G, H. (2020). How Maritime Laws Differ from State Laws for Cruise Ship Injuries. Retrieved December 9, 2020, from https://www.hg.org/legal-articles/how-maritime-laws-differ-from- state-laws-for-cruise-ship-injuries-50913

Justia. (2018, August 10). Cruise Ship Law. Retrieved December 11, 2020, from https://www.justia.com/admiralty/cruise-ships/

Lee, S. (2019, July 23). Overboard Accidents and Ships. Retrieved December 9, 2020, from https://www.attorneystevelee.com/our-library/overboard-accidents-and-ships/

The Maritime Executive 01-18-2019 03:29:15, The Maritime Executive 12-11-2020 04:11:00,

The Maritime Executive 12-11-2020 02:58:51, The Maritime Executive 12-11-2020

02:42:31, & The Maritime Executive 12-11-2020 01:49:11. (2019).

Cruise Passenger May Face Legal Action After Jumping Overboard. Retrieved December 11, 2020, from https://www.maritime-executive.com/article/cruise-passenger-may-face-legal-action-after- jumping-from-cabin

Passy, J. (2017, August 12). The dark side of cruises. Retrieved December 10, 2020, from https://www.marketwatch.com/story/the-dark-side-of-cruises-since-2000-nearly-300- people-have-gone-overboard-2017-07-20

Bitcoin and the Legal Fight for Cryptocurrencies

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Bitcoin and the Legal Fight for Cryptocurrencies

An Analysis on the Legal Developments of Cryptocurrency Acceptance and its Impact on the Hospitality Industry Las Vegas, NVC

Contents

Abstract …………………………………………………………..2

Introduction And Background. ………………………….3

Current Legal Environment ………………………………5

Hospitality Use Cases……………………………………. 10

Recommendations And Conclusions. ……………….14

Citations. ………………………………………………………17

ABSTRACT

The fascinating and intricate world of cryptocurrency holds extremely high promise for adoption into hospitality and tourism systems. The industry could benefit greatly from blockchain adoption but rampant legal concerns including struggles with how to classify bitcoin and other cryptocurrencies, security concerns, lack of regulatory measures, tax concerns, as well as propensity to use blockchain for illegal means due to its inherent anonymity all place the future of blockchain adoption for the wider hospitality industry in jeopardy.

INTRODUCTION AND BACKGROUND

Some would argue that blockchain is the greatest thing that most people have never heard of. Proponents would say blockchain elevates trust and relational capabilities in an expedited and holistic manner, democratizes participation in economic systems and re-distributes power and economic relations amongst actors by influencing the way data is collected, stored, exchanged and owned (Tham and Sigala, 2020). Detractors would argue that bitcoin combines elements of a Ponzi scheme with market manipulation and pump-and dump (Engle, 2016) and opens the flood gates up to potential criminals to make their illegal activities even more anonymous to the wider public. Whatever side of the fence one may be on, the potential around cryptocurrency and blockchain in general is undeniable.

Cryptocurrency employs cryptography to conduct secure transactions, with Bitcoin being the most well-known of cryptocurrencies. At its heart, Bitcoin uses a peer-to-peer payment system to conduct secure electronic transactions but it operates on what is called the blockchain. (Zeng et al, 2015). In order for transactions to be verified, a blockchain must be solved in order for the transactions to be added into the public ledger. Many argue that due to its distinctive technological nature and different configuration set- ups, blockchain has the potential to create and form new market settings and equilibriums that no only simply fix existing sustainability gaps and needs but also form new markets with new rules and institutional logics for achieving tourism sustainability (Tham and Sigala, 2020). Among the emerging technologies surveyed by PwC in 2017, hospitality and leisure are poised to receive the largest share of investment in blockchain technology (Kwok and Koh, 2019). Blockchain has become a significant source of disruptive innovation and when combined with all of the sub industries that make up the larger hospitality industry, these industries create a $7.6 trillion dollar market, roughly 10% of the world’s GDP (Kizildag et al., 2019).

This all shows the immense promise and potential for the hospitality industry should they begin to embrace blockchain technology more readily, but there are huge barriers to this happening on a wider basis. Some of the biggest issues that face blockchain mass adoption from a legal standpoint are its inherent decentralization, its propensity to allow illegal unregulated commercial activity, its precarious legal classification of what exactly cryptocurrencies like Bitcoin are considered, as well as the uncertain tax implications of certain cryptocurrencies like Bitcoin. All of these issues we will explore in detail later in the paper, but all have their own unique challenges that could prevent wider adoption of Bitcoin and other cryptocurrencies like it. Bitcoin is the mother of all cryptocurrencies and was the first of its kind, so arguably if Bitcoin cannot attain mass adoption and greater regulatory and legal approval, neither will other cryptocurrencies.

CURRENT LEGAL ENVIRONMENT

The hospitality industry in general has experienced a surge of peer-to-peer transactions in a number of other forms outside of the blockchain, such as Airbnb and Uber (Zeng et al., 2015). Peer-to-Peer transactions will continue to increase well into the future due to their inherent flexibility and convenience and blockchain is no different. With respect to Bitcoin specifically, Bitcoin provides speed and convenience to a plethora of hospitality services. Bitcoin currency conversion makes international travel more comfortable because travelers can simply convert their native currency to the currency of their foreign travel. From the perspective of the business entity, businesses can avoid paying high transaction fees from intermediaries such as banks and credit card companies and they can accept Bitcoin payment from anywhere in the world. Firms can reduce expenses by paying a lower transaction fee with the usage of Bitcoins. Businesses also eliminate the risk of credit card charge-backs or warranty issues, since a Bitcoin payment is final and complete when accepted, without recourse by the consumer (Zeng et al., 2015).

There are a variety of examples of the mainstream appeal of Bitcoin and blockchain in a variety of companies. Companies such as Cheapair.com and Expedia have accepted Bitcoins for local and international transactions (Zeng et al., 2015). Large distribution corporations and verticals have invested in developing proprietary blockchains and smart contracts to manage corporate procurement, B2B contracting and SC relations (Tham and Sigala, 2020). Governments of several small island economies are even heading the adoption of blockchain technology and their cryptocurrency volume constitutes the highest proportion of the billion-dollar daily trading volume of all cryptocurrencies (Kwok and Koh, 2019).

While this adoption may seem highly promising, there are still numerous legal issues as it pertains to Bitcoin and blockchain technology that are contentiously being debated and overall represent a steep uphill battle that must be fought in order to achieve greater mass adoption for these disruptive technologies. For starters, there is a deep mistrust of cryptocurrencies from a security standpoint and lack of governmental regulation. Several Bitcoin exchanges such as Mt. Gox, Tradehill and Bitcoinica have been compromised by hackers and fraudsters with significant loss to investors (Engle, 2016). There is a severe lack of awareness surrounding data security as it pertains to blockchain and while the intention of blockchains are to reduce corruption and collusion, there are many examples where they nonetheless have been a guise for well-concocted plans for money laundering as well as a variety of other crimes (Tham and Sigala, 2020).

When it comes to lack of governmental regulation, there are very few direct laws or statues that directly address blockchain as a whole. More statues have been created around Bitcoin due to its popularity, but this only represents a fraction of the larger cryptocurrency ecosystem. Most of this is due to the inability of many courts to even properly iron out how to classify Bitcoin and other cryptocurrencies. In SEC v. Shavers, a U.S. court affirmed Bitcoin to be a currency (Engle, 2016). If this continues to be affirmed by other courts, an argument exists that cryptocurrencies such as Bitcoin have the potential to be deemed counterfeit and rendered illegal due to them competing against the dollar as a general medium of exchange and thereby violating the federal money monopoly (Engle, 2016). The Stamp Payment Act makes it illegal for an individual to create and circulate legal currency that competes with U.S. Currency (Zeng et al.,). For now Bitcoin avoids Stamp Payment Act laws because it does not emulate U.S. coins and presents no threat to the American dollar, in addition to the fact that very few courts have even affirmed Bitcoin to be considered a currency.

Gerkis and Krikunova, supra note 16, at 6 classified Bitcoin as a security. If Bitcoin is found to be considered a security, this means it falls under SEC jurisdictional regulation and this means that Bitcoin represents a business investment in which the Bitcoin holder expects to gain a profit (Zeng et al., 2015). In addition to this, there have also been issues raised about whether a Bitcoin transaction is subject to sales tax, and income tax on profits. Currently the IRS states in Notice 2014-21, 2014-16 I.R.B. 938 that virtual currency is treated as property. General tax principles applicable to property transactions apply to transactions using virtual currency. Therefore, cryptocurrency should be taxed according to the gain or loss that taxpayers realize when they sell or exchange cryptocurrency. This further points to Bitcoin and other cryptocurrencies being seen more as security than actual currency. Whether a security or currency there even exists a middle ground where cryptocurrencies can be considered currencies, and yet may also be subject to SEC jurisdiction as a security, depending on the specific facts of the case (Engle, 2016).

Cryptocurrencies have even been found to be investment contracts under the Howey test based on definitions prescribed in SEC v. Howey where cryptocurrency is found to be an investment of money that has common enterprise which is expected to produce profits thanks to the effort of others (Engle, 2016). Many countries do not even consider Bitcoin and other cryptocurrencies to be real currency, but allow them to be used as a medium of exchange. The act of exchange of services or products without legal tender is known as bartering and some have even argued that Bitcoin and other cryptocurrencies presents itself more as a barter transaction than a currency, though nowhere is it spelled out as such (Zeng et al., 2015). Between labeling them as a currency, security, investment contract, or simply as a bartering system, blockchain and the cryptocurrencies that sit in its medium clearly have a lot of regulatory issues to work out not to mention the deep security implications and ripeness for illegal activity to take place, but the issues don’t stop there.

Cryptocurrencies, like public companies, have ways that they formally announce to the public that they are now public. These are called ICOs, or Initial Coin Offerings. ICOs are relatively new terms and due to them being fairly new there is not a lot of regulation around them. Since 2017 there has been a booming surge of ICOs that raised outrageous sums of money in significantly short time spans, particularly when compared to IPOs held by traditional companies. In 2017 alone, ICOs collectively raised an estimated $5.1 billion and Brave, a company developing a decentralized web browser, raised an astonishing $35 million in less than 30 seconds (Robinson, 2018). Bancor, a company developing a cryptocurrency exchange platform, raised in excess of $153 million in just three hours (Robinson, 2018). Another example of innovatively using ICOs was that an ICO was used as a fundraising mechanism to develop a resort on the Great Keppel Island in the Great Barrier Reef, off the coast of Queensland (Tham and Sigala, 2019).

Many of these ICOs were able to be held without formal letters of incorporation, without a Board of Directors, and without representing a formal company. In many ways, people invest in an idea with no formal regulatory agency to validate the authenticity of these different ICOs and where the money raised is actually going. It is what Robinson calls the New Digital Wild West. One could argue that the entire regulatory nightmare that blockchain faces in its hope for mass adoption is for sure the definition of the New Digital Wild West.

HOSPITALITY USE CASES

Hospitality industry professionals are motivated to explore the possibilities of utilizing Bitcoin as an acceptable form of payment in their global market as well as other cryptocurrencies. However, hospitality professionals have a legal obligation to safeguard guests and patrons identity and to not participate in illegal transactions, such as fraudulent acts and “money laundering” (Zeng et al., 2015). At present, academic literature studies on Bitcoin remains concentrated on its economic value, with early adopters keen to speculate by buying with the intention of recouping quick returns on their initial investments. There remains a lack of critique as to how cryptocurrencies, such as  Bitcoins, work operationally across very diverse market conditions (Tham and Sigala, 2020). While this may be true specifically for Bitcoin, there are a variety of examples on how the building blocks which Bitcoin is built on, blockchain, can be utilized to benefit hospitality enterprises and is already being utilized by a variety of hospitality enterprises.

Early adopters of blockchains and cryptocurrencies within the tourism industry such as major airlines like Air New Zealand, Air France-KLM, Singapore and Lufthansa as well as big hotel chains like Marriott’s Bonvoy loyalty and booking system suggested that innovators required significant financial and resource investment before blockchains can be leveraged to the business mode (Tham and Sigala, 2020). This thought process slowly waned as a variety of different areas of the industry as well as outside the industry began to participate in blockchain innovation thanks to its wide of amount of flexibility and complexity.

Discussions and arguments about the applications of blockchain technology in financial services are particularly rampant in areas such as commercial and internet banking, innovative payment solutions, point-of-sale (POS) technology, asset trading and exchanges, financial security concerns, and financial advice and customization of personal/household finances (Kizildag et al., 2019). This has many parallels to hospitality enterprises as perhaps one of the readiest applications of blockchain technology to hospitality and tourism will emerge in the form of payments and transactions that are facilitated by cryptocurrencies , such as Bitcoin (Kizildag et al., 2019). Bitcoin ATMs have already been installed in Canada, Australia, Finland, Slovakia, Germany, UK, Switzerland, and the United States. The shopping website, eBay, accepts Bitcoin transactions in the UK and Cumbria University started to accept Bitcoin as a tuition fee payment (Zeng et al., 2015). Countries such as Russia and South Korea have already initiated blockchain platforms to facilitate cryptocurrency transactions in tourism (Tham and Sigala, 2020).

There are a variety of other ways that companies are utilizing blockchain technology to their advantage outside of payment transactions. TUI Travel Group is already using blockchain technology to manage the distribution of its inventories and other assets and handle internal processes such as loyalty and reward platforms to improve the end-to-end user experience (Kizildag et al., 2019). Blockchain has the high probability to influence the way companies structure their loyalty and reward program as blockchain allows companies to issue loyalty tokens as rewards in their loyalty programs. This particular loyalty token enables guests to freely exchange, trade and/or redeem loyalty tokens in an open forum with others to increase the monetary value of the rewards (Kizildag et al., 2019).

In wine tourism, specifically by openvino.org, blockchain is being used to provide transparency and information about the origin/authenticity of wine offerings (from grape cultivation to winemaking and distribution/sales until the final stage consumption at  cellar door or restaurant) and even raise capital and crowdfund wine tourism projects by issuing and developing cryptocurrencies whose value is backed-up with real wine products (Tham and Sigala, 2020).

From a paperwork and administrative perspective, blockchain is allowing for a distributed sharing of information to check against loan records, credit histories and collate legal documentation such as digital signatures and electronic copies of personal identification in an expedited manner. This not only significantly reduces the time, cost and effort required from all parties involved but is also more sustainable as it eliminates unnecessary paperwork (Tham and Sigala, 2020).

Given the highly competitive and evolutionary trends confronting tourism providers, blockchains and cryptocurrencies present a viable proposition to reduce inefficiencies, re-distribute power amongst economic actors and create a more equal playing field between large and small operators that heavily dominate the tourism industry, challenge current power relations and structures within SCs by providing transparency and establishing authenticity of actors and transactions and question and disrupt traditional intermediary services by empowering actors to keep ownership of their identity and transactional data (Tham and Sigala, 2020). By providing more equal opportunities to small and bigger tourism players to participate and compete in the tourism economy with “equal terms,” blockchains and cryptocurrencies create more inclusivity related to the credence nature of tourism and its ethical and responsible values (Tham and Sigala, 2020).

RECOMMENDATIONS AND CONCLUSIONS

There is a host of opportunity out there when it comes to the overall potential use cases of blockchain and cryptocurrencies in the context of the hospitality industry. One of the key areas of focus for wider adoption of this emerging technology will rely on there being a “leader” and/or a critical mass of enthusiasts mutually supporting and trusting   one another within a blockchain ecosystem. In a similar vein, and to support the industry- wide adoption of blockchain the existence of an industry representative (e.g. a destination management organization) and/or an exemplar best practice can significantly help in pushing blockchain adoption (Tham and Sigala, 2020). These two points point to the notion that people have to get in the game in order for its value to spread. Companies  have to take risks and be willing to get involved in the cutting edge of technology in   order for blockchain to even have a chance at survival. Early adopters and first movers  are some of the most important key players when it comes to finding champions for this kind of innovative change, particularly from very large enterprises that command the attention of other smaller entities.

Many of the roadblocks to greater blockchain adoption is due to the legal battles that are still very much alive. Much of this starts with a lack of foundational knowledge around what blockchain and cryptocurrencies are and the variety of benefits that they can provide. The average person does not know what blockchain or a cryptocurrency is and would not be able to explain it and even those who are intimately familiar with the concepts may struggle to explain it to a layman. For laws to change, lawmakers have to understand what the technology is. They have to understand its value, what it provides, and the ways it can improve larger society while also understanding its risks. No business operates without risk, yet businesses are still allowed to operate. In the same vein, while blockchains were primarily designed to ensure that the system would self-regulate without necessary governmental intervention (Tham and Sigala, 2020), this sentiment is largely what is keeping blockchain from larger adoption. Those involved in blockchain and cryptocurrency have to be willing to find compromises between completely compromising their system to regulatory oversight and nightmares to finding a healthy balance between regulation and privacy. This may take a while to determine the appropriate balance, but it is critical to the mass adoption of blockchain.

Kwok and Koh aptly explained some of the most critical ways that blockchain can benefit hospitality enterprises, and while their research was focused mostly on small island entities, the benefits can have strong parallels to larger economies and tourism industries in more developed countries:

“While the application of blockchain technology is multi-faceted, its implementation is set to benefit tourism in four broad areas. First, blockchain will enhance tourist experience as the platform support technology-mediated learning which is dyadic between tourism operators and tourists…. Second, cross-border remittances via blockchain network in SIEs is quick and hassle-free. Additionally, pricing in cryptocurrency unit is universal and real-time, thus, easing foreign currency conversion… Third, using blockchain technology provides a means of diversification– to safeguard the currency and strengthen the banking system. The financial institutions of SIEs are highly reliant on correspondent banks. Besides minimizing the prohibitive cost of compliance to sustain their operations in SIEs, blockchain technology will also establish a more robust mechanism to monitor compliance… Lastly, from the host destination perspective, doing away with the commission fees via the blockchain can contribute to lower overall operating cost.”

Blockchain has a variety of benefits but comes with a variety of legal struggles that must be worked through in order to achieve wider adoption. As technology advances, so too must the business practices of operators. Blockchain enables hospitality companies to stay on the cutting edge while also cutting out intermediaries and providing customers with an end-user experience that attempts to actively protect their identity but also provide them a more customized and even flexible experience. Blockchain is applicable to a wide variety of functional areas and can benefit nearly any portion of a hospitality business, but that business has to be willing to ride the wave of changes that this new disruptive technology will face as well as face the limited acceptability until further adoption has been achieved.

CITATIONS

  1. Zeng, , Thomas, J. H. , Kitterlin-Lynch, M. , Chang, S. H. , & Williams, J. ( 2015). Bitcoin: Legal issues and usage in the hospitality industry. Journal of Hospitality & Tourism Cases, 4 (3), 68– 73.
  2. Tham, and Sigala, M. (2020), “Road block(chain): bit(coin)s for tourism sustainable development goals?”, Journal of Hospitality and Tourism Technology, Vol. 11 No. 2, pp. 203-222.  https://doi-org.ezproxy.fiu.edu/10.1108/JHTT-05-2019-0069
  3. Kizildag, , Dogru, T., Zhang, T.(., Mody, M.A., Altin, M., Ozturk, A.B. and Ozdemir, O. (2019), “Blockchain: a paradigm shift in business practices”, International Journal of Contemporary Hospitality Management, Vol. 32 No. 3, pp. 953-975. https://doi-org.ezproxy.fiu.edu/10.1108/IJCHM-12-2018-09586
  4. Andrei J. Kwok & Sharon G. M. Koh (2019) Is blockchain technology a watershed for tourism development?, Current Issues in Tourism, 22:20, 2447-2452, DOI:10.1080/13683500.2018.1513460
  1. RANDOLPH ROBINSON II * (Summer, 2018). ARTICLE: THE NEW DIGITAL WILD WEST: REGULATING THE EXPLOSION OF INITIAL COIN OFFERINGS. Tennessee Law Review, 85, 897. https://advance-lexis- com.ezproxy.fiu.edu/api/document?collection=analytical- materials&id=urn:contentItem:5W1N-VKK0-00CW-1253-00000-00&context=1516831.
  2. Eric Engle (2016). ARTICLE: IS BITCOIN RAT POISON? CRYPTOCURRENCY, CRIME, AND COUNTERFEITING (CCC). Journal of High Technology Law, 16, https://advance-lexis-com.ezproxy.fiu.edu/api/document?collection=analytical-   materials&id=urn:contentItem:5JW7-PKM0-0198-F0H3-00000-00&context=1516831.

Airbnb, VRBO and Short-Term Rentals- Analysis of the legality of short-term rentals and its impact on hospitality

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Airbnb, VRBO and Short-Term Rentals – Analysis of the legality of short-term rentals and its impact on hospitality

Introduction

Short Term rental companies like Airbnb and VRBO have been around since 2007. These companies allow homeowners the opportunity to make an extra income by renting their homes or rooms for a short period of time. As opposed to renting a hotel room, guests have the chance to book a complete apartment or condo through these platforms. Over a few years, the companies were well on their way to be successful. However, with success came a few headaches. It appeared to be that homeowners began to claim guests trashed the homes, broke furniture, and left the homes absolutely destroyed. Other legal issues arose in major cities, where local governments began to set regulations that threaten the platform and its short-term rental model. This paper will analyze the legal concerns surrounding short term rentals and specific cases that apply.

The paper will also address the impact the short-term rental company has had on the hospitality industry. Initially, the paper will address the history of the short-term rental industry and how it came about. Then we will analyze specific cases that challenge the legality of it and then we will go into detail on it. The paper will also go into management suggestions and how this has impacted the lodging industry.

Historical Background

Websites like Airbnb and VRBO offer their services as a home-sharing platform that allows owners to rent their homes out to guests for a short period of time. Guests then sign a lease, pay a fee and stay at the home for the allotted time. Airbnb and VRBO and other companies act as brokers that receive a commission from the bookings and transactions that occur on their platforms. In order for owners to use the platform, they must create a listing with pictures, videos, and price list for the home. More often than so, the prices and availability on Airbnb are more affordable and convenient to travelers. This makes it a competitive option to hotels and other lodging facilities. Although the platform itself is not illegal, there are issues that arise in local government from tenants renting their apartment out in cities. One restriction of short-term rentals is in New York City. To be more specific, the city has tried to pass bills that restrict short term rentals. In New York City, the Governor passed a law that owners and tenants cannot rent out an entire apartment for less than 30 days (New York, 2020). In addition, New York Multiple Dwelling state law prohibits advertising an apartment in any building with 3 or more residential units, for rent of any period less than 30 days, doing so will violate the law and the owner can be fined up to $7,500 (New York, 2020). According to an article in the Daily News, the law is targeted to those who drive up the housing costs in New York City. They are really trying to target the owners that have multiple listings that are managed by commercial operators and not owners (Hessinger, 2015). The main battle in some urban cities is that with this “sharing economy”, these short-term rentals are illegal if less than 30 days (Barber, 2016). Some critics even say that Airbnb has removed neighbors and friendly meet-ups, especially in tourist cities and popular neighborhoods.

Now not only does this cause an issue with local governments and regulations, it also causes an issue with the lodging industry. Airbnb makes it easy for guests to find valuable accommodation in well-known locations. This often poses a threat to hotels, as the price is significantly cheaper for Airbnb. Therefore, this undercut the profits to the hotel industry. This paper will then analyze the impacts Airbnb has had on the lodging industry and some management suggestions.

Legal Issues

One of the toughest challenges the home sharing platforms has been in the city of New York City. The battle has been mainly with state laws and local regulations that strictly prohibit the advertising of short-term rentals on sites and if found advertising owners can be charged with a heavy fine. In order to challenge this a case was brought upon the city. Under Airbnb Inc, vs, City Of New York, Airbnb initiated action due to an ordinance that the city had enforced on tenants using the platform. The ordinance stated that the booking platforms used to advertise rentals or accept such offers will be required to provide a list of the transactions and fees they receive on a monthly basis. According to the ordinance, Airbnb states that this violates the First and Fourth Amendment (Airbnb vs. City of New York, 2019).

Another legal issue are the taxes that hotels or tourists are supposed to pay when staying in these cities. According to an article reporter, Airbnb wants to begin to pay occupancy taxes to be recognized as a more legitimate rental company, that is why they attend all government conferences (Mende, Molongoski, Virkler, 2016). It seems that they are trying to plead their case for following the tax guidelines in places such as New York and St. Lawrence County. A case that arose that challenged Airbnb and HomeAway to pay taxes was Gannon v. Airbnb, Inc 295 So. 3d 779. The tax collector in a Florida city filed a complaint for declaratory relief against these short-term rental companies seeking a declaratory judgment that these companies were required to pay and register as dealers to collect and remit the TDT pursuant to sections  125.0104 and 212..035 Florida statutes (2005). According to the appeal case, the court affirmed the summary judgment from the trial case. They stated that these companies that advertised these short-term vacation rental listings on their platform are not required to register as dealers and collect or remit the Tourist Development Tax (TDT) pursuant to 125.0104 and 212.0305 because the art of facilitating the room reservation process did not qualify as exercising the taxable privilege, therefore, the TDT did not apply to them. The question here that arises is whether the tax guidelines to collect and remit the TDT in the state of Florida falls on the owner or the company. According to the case, the owner is responsible for collecting and remitting this tax as the companies are not considered “dealers” in this case (Gannon v. Airbnb, Inc, 2020).

Considering Airbnb is a startup company, they still continue to face issues when issues arise that guests are injured or guests damage the property. An example of this issue when a  guest was injured is with Caroll vs. American Empire Surplus lines Insurance Co. Civil action No. 16-2589 (Ed. La 1927). The issue was that the plaintiff filed suit and claimed that they sustained injuries from the staircase that collapsed during their stay. The plaintiff and their friend rented the house in Louisiana from the owners using the website of the defendant Airbnb. In April 2015, Caroll was ascending to access the property and the wooden stairs collapsed causing the plaintiff to fall about 10 feet (Eturbo News, 2015). Carrol claims tort against the defendant owners, several alleged insurers and Airbnb. The defendant Airbnb moved for summary judgement dismissing the plaintiff claims, which argues that under Louisiana law defendant Airbnb owed no duty to the plaintiff and that Airbnb had no knowledge of the defect that caused the injury to the plaintiff, the court granted the motion (Caroll vs. American Empire Surplus Lines Insurance Co, 2015). After analysis of this case, a suggestion would be that Airbnb would need to do inventory and a walkthrough of the property with the owner to ensure the property is safe for guests. In hospitality, hotels have a standard of care towards their guests therefore so should Airbnb. In order to do so, Airbnb can have staff in urban cities who do an intake of the property to ensure the standard of care towards their guests. This would be helpful to the company to avoid any lawsuits for negligence or tort of personal injury.

Analysis

After much review of the literature, it appears to be that the short-term rental platforms are very popular, however, because it is a relatively new market, there are not many regulations in place for control of it. Much of the regulations appear to be in the local state governments who oversee the laws and enforce them. This appears to leave the responsibility up to the owner to understand the rules and taxes of their city. Although Airbnb has been trying to negotiate terms with local governments such as Barcelona, New York City, San Francisco and Miami, they have not been as successful. The issue that arises is here with the period of the rental, and how this can disrupt the housing cost. As we see in many legal battles between cities and Airbnb, they fear the owner is not present in the apartment. For example, in San Francisco they limit rentals to where the host is not present for a maximum of 90 days per year (Stephen Fishman, 2019). If the owner is found renting longer, they are fined depending on how many incidents. Therefore, in order to combat these issues Airbnb has grown their legal team substantially to assist with the rising challenges of each city.

Another issue that arises with Airbnb is how the misrepresentation of the listing can occur. The platform is very user friendly therefore it can be easy for an owner to upload a listing and create fake reviews. Therefore, tourists need to be very careful when booking a place as they should only book from super hosts and places who have 5 stars. According to the Airbnb clause, if the home is not as you expected when you check-in, tourists should contact the host immediately, contact Airbnb and check the guest refund policy to see if the cancellation would be valid and any monies owed to you.

Airbnb also appears to be impacting the hotel industry as the rates are affordable and convenient. They offer a local experience whether it be a stay or activity with a local host. This appears to be adding a unique kind of hospitality service that is more personable and authentic to the location. Airbnb claims to be the most prominent lodging company with three million listings in 2017, and a presence in more than 65,000 cities and 191 countries, overtaking hoteliers’ giants such as Marriott and Hilton (Harvard Real Estate, 2019). According to the review, hotels are not able to increase their revenue as much due to the supply of short-term rentals in the market. The convenience, cost, and efficiency of renting a home is attractive to tourists giving Airbnb a competitive advantage over hotels. Therefore, hotels are working on ways to be more attractive as Airbnb. Airbnb brands themselves with an authentic perspective from a local host, experience and stay. Therefore, hotels should try to brand themselves in such a way that comes off authentic as well. From the room to the hotel space and the complete package they offer. Brand authenticity is a pillar that hotels can build on for a strong and loyal brand relationship with customers (Gomez & Mody, 2018). Hotels can use this when rebranding themselves and their portfolio to be more authentic in their guest experience and what they offer to their guests. A few effective ways of doing so would be personalizing the stay and consistent communication throughout the stay, and using technology to supplement employees instead of replacing them.

Hospitality is a very personable industry. If hotels can find ways to use technology to supplement the experience, hotels would be able to build and keep loyal relationships with customers. Not only do hotels see Airbnb as a threat, they have attempted to enter the market to stay relative. For example, Accor purchased OneFineStay, Hyatt partnered with Oasis and Marriott partnered with Tribute Portfolio Homes (Gomez & Mody, 2018). These major hospitality companies are clearly seeking ways on how to enter the home-sharing market with these partnerships. Therefore, it is evident to learn clever ways on how these platforms are effectively creating loyal relationships with their customers.

Management Suggestions

 A few suggestions for management would be as follows:

  1. Understand the changing market dynamics – This will help to understand the needs and wants of the Hotels will need to track price strategies such as ADR/ RevPar and occupancy rates to see how the hotels in the area adjust their prices and market accordingly.
  2. Invest in resources hotels can offer – This means that hotels should highlight the resources they can Commodities such as 24/7 security, cleanliness and turn down service, immediate staff available at any time, food services (if applicable) and many more. Hotels can learn to take advantage of what they can offer to the guest and highlight those services. (Provide examples of Hotels that are showcasing this such as Locke Hotels).
  3. Promote authentic experiences – Tourists seeking Airbnb hosts are most likely seeking authentic Therefore, hotels should brand themselves with a similar approach. Airbnb hosts tend to be the point of contact for the stay, which in turn allows for a personable experience. Hotels should seek to make the hotel stay a personable experience. A way to do so would be to assign hosts to guests at check-in who can help the guests throughout their stay. This hotel staff can recommend the guest any activities and essentially be the “host” during their stay.

Conclusion 

As Airbnb continues to grow and even sell stock shares on the market, it is recognized that it will be a giant force in the hospitality industry. They will create trends and continue to challenge the hotel and hospitality industry. Therefore, hoteliers need to learn how to compete with this platform as more supply for vacation rentals becomes available and for the modern traveler, this becomes a convenient accommodation option. Hotels can rethink their brand promise and try to be more authentic with their guests. They should also try to create a memorable experience outside of the guestroom. Hotels can offer a lot more than Airbnb as they have spaces to do. If they can leverage these communal spaces (restaurants, fitness centers, bars, lobbies, poolsides, etc.), to create a memorable experience all together they can attempt a higher net promoter score and increase their brand loyalty.

References 

Airbnb, Inc. v. City of New York, 373 F. Supp. 3d 467, 2019 U.S. Dist. LEXIS 755, 2019 WL 91990 (United States District Court for the Southern District of New York January 3, 2019, Filed) https://advance-lexis-  com.ezproxy.fiu.edu/api/document?collection=cases&id=urn:contentItem:5V3X-8CW1-JF1Y-   B3RK-00000-00&context=1516831.

Barber, M.. (November 10, 2016 Thursday). Airbnb vs. the city. Curbed. https://advance-lexis- com.ezproxy.fiu.edu/api/document?collection=news&id=urn:contentItem:5M4S-01K1-JCMN- Y22F-00000-00&context=1516831.

Gannon v. Airbnb, Inc., 295 So. 3d 779, 2020 Fla. App. LEXIS 3954, 45 Fla. L. Weekly D 690 (Court of Appeal of Florida, Fourth District March 25, 2020, Decided). https://advance-lexis-  com.ezproxy.fiu.edu/api/document?collection=cases&id=urn:contentItem:5YHD-T851-F873-   B38R-00000-00&context=1516831.

Gomez, M., & Mody, M. (2018, October 31). Airbnb and the Hotel Industry: The Past, Present, and Future of Sales, Marketing, Branding, and Revenue Management. Retrieved December 11, 2020, from https://www.bu.edu/bhr/2018/10/31/airbnb-and-the-hotel-industry-the-past-present– and-future-of-sales-marketing-branding-and-revenue-management/

Hessinger, S. (December 22, 2015 Tuesday). New York Cracks Down on Short Term Rentals and Airbnb. Small Business Trends. https://advance-lexis-  com.ezproxy.fiu.edu/api/document?collection=news&id=urn:contentItem:5HNS-NDW1-JCMN-   Y4GD-00000-00&context=1516831.

Harvard Real Estate Review. (2019, January 25). A New Era of Lodging: Airbnb’s Impact on Hotels, Travelers, and Cities. Retrieved December 04, 2020, from https://medium.com/harvard-real-estate-review/a-new-era-of-lodging-airbnbs-impact-on-hotels-travelers-and-cities-   de3b1c2d5ab6

Mende, S., Molongoski, B., & Virkler. S. (November 27, 2016 Sunday). Airbnb draws tourists to north country, raises tax issues. Watertown Daily Times (New York). https://advance-lexis-  com.ezproxy.fiu.edu/api/document?collection=news&id=urn:contentItem:5M8C-8HW1-JC6P-   C0VM-00000-00&context=1516831.

New York, C. (Ed.). (2020). Stay in the Know. Retrieved December 04, 2020, from  https://www1.nyc.gov/site/specialenforcement/stay-in-the-know/information-for-hosts.pag

Sinrod, E. (October 26, 2016 Wednesday). Platforms Like Airbnb And VRBO To Thrive Or Facing Legal Reckoning?. Mondaq. https://advance-lexis-  com.ezproxy.fiu.edu/api/document?collection=news&id=urn:contentItem:5M1J-7MR1-JCMN-   Y3YG-00000-00&context=1516831.

Stephen Fishman, J. (2019, August 27). Overview of Airbnb Law in San Francisco. Retrieved December 11, 2020, from https://www.nolo.com/legal-encyclopedia/overview-airbnb-law-san- francisco.html

Eturbo News. (June 21, 2018 Thursday). Airbnb guest severely injured traversing stairs in home of Airbnb host: Is Airbnb liable? https://advance-lexis- com.ezproxy.fiu.edu/api/document?collection=news&id=urn:contentItem:5SM4-56T1-F12F- F1BB-00000-00&context=1516831.

ADA Compliance in the Hospitality Industry

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ADA Compliance in the Hospitality Industry:  Providing Accessibility for All

Introduction

Each year thousands of Americans embark on a variety of leisure and business-related trips across the country and can do so without giving much thought besides what they need to pack, what their itinerary entails, or what the weather will be like. However, for those with disabilities, it can be a much more complicated process that requires more consideration than just the weather. According to the CDC, more than 60 million adults live with some type of disability in the United States. Of those disabilities, 13.7% involve mobility issues surrounding difficulty walking or use of a wheelchair. Unfortunately, those with disabilities often face discrimination by not being able to properly access or enjoy the same amenities because of physical barriers. By the year 2030, over 70 million Baby Boomers will be over the age of 65 and may require additional products, services, or environments that address their age-related physical changes. The hospitality industry has a duty to be available and accessible to all despite any additional requirements or extra assistance someone may need. Regulations involving the physical design and construction of these hospitality venues must be followed and enforced to provide equal opportunities for everyone. This paper will offer a thorough analysis of the legal regulations passed that protect the rights of the disabled community and how it relates to the hospitality industry. It is divided into five sections that cover the following: an overview of the ADA law, a review of the specific requirements for hotel properties with references to cases pertaining to these issues, disabilities other than those associated with mobility issues, the ongoing battle between preserving historic properties and providing accessibility and finally, recommendations for hotel managers and how they can ensure their properties are accessible to all.

The Law: Americans with Disabilities Act

The Americans with Disabilities Act (ADA) was passed in 1990 by President George

H.W. Bush to specifically address the obstacles those with disabilities were facing in the country. The ADA is a civil rights legislation that prohibits the discrimination based on a disability. It was created to ensure that people with disabilities receive all the same opportunities as everyone else, including employment opportunities, purchasing of goods and services, as well as the   ability to physically access public facilities including transportation. The ADA recognizes that disabilities do not only encompass those with mobility issues but also acknowledges those with disabilities involving cognition, vision, and hearing. It defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.”  Over the years, the ADA legislation has been amended to adapt to the new technologies and advancements as well as the changing needs of those with disabilities. An amendment to the legislation known as the ADA Amendments Act of 2008 was passed into law in which the government broadened the definition of “disability.” It also expanded on what constitutes as “major life activities” to  include, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working, as well as the operation of several specified major bodily functions.”  The United States Department of Justice (DOJ) regulates and enforces the ADA on a federal and state level. In addition to the DOJ, there are other agencies able to enforce the compliance of ADA such as The Department of Labor, The Equal Employment Opportunity Commission, The Department of Transportation, and the Federal Communications Commission. When violations occur, individuals or entities may file a claim against the offending establishment or person. These cases can be addressed at the local government level or be  brought to federal court if necessary.

The Americans with Disabilities Act consists of three sections or “titles” that address different areas of equal opportunities. Title I protects those with disabilities from discrimination regarding employment and job application procedures. Title II is regarding the nondiscrimination in State and local government level. This includes local school districts, public transportation, public or government assisted housing and any other state or local government services or facilities. Title III prohibits disability discrimination from all public accommodations and commercial facilities. This extends to anyone who owns, leases, or operates a place of public accommodation. Public accommodations include places of lodging, restaurants, recreation, spas, theaters, galleries, night clubs and retail stores. Title III applies to both new construction buildings as well as existing structures. All businesses that serve the public must provide equal opportunity for customers with disabilities.

Providing Accessibility in the Hospitality Industry

Because the hospitality industry falls primarily under the Title III restrictions, it has the responsibility to provide “full and equal enjoyment of all goods, services, facilities, privileges, advantages and accommodations.”  This encompasses not only the physical ability to enter or use a facility but also being able to partake in the same recreational activities or business-related tasks as everyone, such as sharing a drink at a bar with a friend, checking into a hotel, enjoying a meal with family in a dining facility or working in a large office environment. The physical design and construction of a hospitality establishment is the predominant area of focus when it comes to providing accessibility. The ADA Standards for Accessible Design are found under Titles II and III of the ADA and include detailed requirements regarding new construction, alterations, program accessibility and barrier removal. Providing proper entrance ramps, door clearances, and accessible restrooms are just a few basic examples of ways a building can be compliant. The ADA Standards were first included in the original 1990 passing of the regulation. The most current set of enforceable regulations are the 2010 ADA Standards of Accessible Design. The Standards state that any building built after 1992, must be accessible and usable by everyone. If an older building built prior to 1992 undergoes any type of renovation, the entire facility must be brought up to ADA compliance even if it was not an area initially being renovated.

When dealing with the construction of a new building, it is required that the owner, operator, architect, designer, and entire construction team adhere to the ADA Standards to make the building accessible. This is the best opportunity to plan for accessibility and avoid architectural barriers that people with disabilities typically face in older buildings. It is important to consider not just those with mobility disabilities but also those with vision impairments, hearing disabilities and even those with limited dexterity or grasping ability. Some examples of accessible requirements in a new building are: accessible parking sports, accessible sales and service counters, accessible public restrooms, accessible routes and accessible recreational  spaces. If a new building is not constructed to be ADA accessible, the owner and operator of the establishment are opening themselves up to lawsuits and claims for discrimination against disabled people. In United States v. Days Inn of America, the government brought a lawsuit against the owner, operator, and brand of a Days Inn hotel for violating the ADA compliance requirements of the newly constructed structure in Champaign, Illinois. Days Inn entered into a licensing agreement with Panchel & Patel Inc. for the construction of the new hotel. The  licensing agreement requires the licensee to obtain approval from Days Inn of America to begin any construction and to involve them in the design and construction process so that they may review and comment on the individual plans. Days Inn requires all their properties to be ADA accessible and details the minimum requirements in their Planning and Design Standards   manual. All licensees must receive corporate approval of all plans to ascertain initial compliance with Days Inn standards. Despite consistent involvement from all parties during the planning and construction process, which included thorough reviews of the drawings and several onsite inspections of the building, the hotel still had multiple violations of ADA. The courts found that because Days Inn of America was involved in the review, they were still liable for the violations.

Accessibility in Hotel Guestrooms and Public Areas

ADA accessibility in lodging accommodations encompasses not only the public areas such as lobbies, bars, and meetings spaces, but also the guestroom itself. The ADA Standards provides a detailed list of requirements for a hotel guestroom to be considered compliant. It is required for the hotel to have a specific number of ADA compliant rooms and an equal disbursement of ADA rooms across the various room types such as suites. In the ADA rooms, the main requirement is to have an accessible bathroom complete with either a roll in shower or accessible tub with ADA seat. In the shower itself, plumbing fixtures and safety grab bars must be installed at specific heights and locations so that a disabled person can access them and be able to transfer themselves in and out successfully either alone or with assistance. Various other clearances, such as a 60” turning diameter of clear floor space, must be provided in the restroom to allow for a wheelchair to move about the space and to permit the guest to use each restroom function. 12 There are also specific ADA requirements surrounding the toilet height as well as clearance under the vanity sink. In the bedroom portion, the remaining furniture in the space should allow for ease of mobility throughout the path of travel within the room and should provide sufficient clearances to access all elements.13 Overall, the guestroom experience should be the same as for someone with no disability. The design and construction of the guestroom is required to allow the guest the same access to amenities so that there is no feeling of a lesser quality room.

Before entering the guestroom, the guest needs to travel through the initial hotel check in procedures. Every step of the way needs to be accessible, from accessing the entry through a ramp, to going through the main entrance doors with proper clearance and moving through the accessible route with no barriers to get to the hotel reception. ADA Standards require all sales and service counters to be accessible. This requires there to be a lower counter at 34” separate from the main transaction counter as well as providing appropriate knee clearance under any surface top for a wheelchair to be able to roll under from either a front or a side approach. In addition to the hotel reception, accessibility must be provided throughout all public areas including lobby lounges, restaurants, and bars. Providing access to all types of gathering areas including lounge seating, dining and bar tops is detailed in the ADA Standards. A bar at a restaurant or lobby lounge must have an accessible counter at a specific lowered height so a person in a wheelchair may be able to sit and enjoy among everyone else.15 Other examples of areas in public accommodations that must be accessible include swimming pools, spas, and public restrooms.

If a hotel or lodging establishment fails to be accessible, the potential for lawsuits is strongly probable. An example of one such lawsuit is Access 4 All, Inc. and Peter Spalluto v. The Atlantic Hotel Condominium Association, Inc. and Luxury Resorts International, Inc. In this  case, the defendant, Peter Spalluto was represented by Access 4 All, a nonprofit organization that represents the disabled community and is comprised of people with disabilities. Together, they filed a lawsuit against the Atlantic Hotel Condominium Association for failing to eliminate physical barriers throughout their property and restaurant. They claimed the defendants violated the Title III of the ADA that specifically requires all public accommodations to be accessible to all. The Atlantic Hotel Condominium is a hybrid hotel and condo association with rental units.   Its common areas, such as the lobby, parking, pool and elevators, are shared by both hotel guests and residence owners. Spalluto, who is a quadriplegic and uses a wheelchair, was visiting the hotel’s restaurant and had rented a room for the evening. During his stay at the restaurant and the hotel, he experienced multiple barriers that prohibited him from enjoying the facilities due to his disability. At the start, there are only two public entrances to the hotel, only one is accessible which is the main circular driveway entrance at the lobby. There was not a secondary accessible entrance and the means of egress to reach the emergency fire exits were not accessible. Spalluto requested a two-bedroom unit at the time of his reservation. There is only one two-bedroom unit in the property, and it is not ADA accessible. There was not an appropriate disbursement of   ADA rooms among all room types in the hotel. According to the ADA, for every unique room type in a hotel provided, there must be one ADA version of that room type available. Because   the two-bedroom unit was not ADA compliant, he could not use the bathroom or shower. He was also unable to access the balcony terrace due to the construction of the sliding doors prohibiting him from crossing over the threshold. Additionally, the reception check in desk, restaurant bar and pool bar all had countertops that exceeded ADA heights which prohibited Spalluto from using them without separate assistance. At the conclusion of the case, the Courts ruled in favor of the plaintiffs and required the Atlantic Hotel Condominium Association to address all the barrier and ADA compliance issues at the property.

Accessibility for Non-mobility Related Disabilities

The Americans with Disability Act also advocates for those with disabilities other than mobility related conditions and the hospitality industry must provide access to those with disabilities of all types. The vision and hearing impaired are also protected under the regulation and require their own accommodations. Individuals who are blind use their sense of touch to access information. They may need the assistance of braille to read any written signs. Those who have low vision may request close vision interpreters, large print materials, or assistive listening devices.17 The ADA also has specifications requiring a high contrast between lettering and backgrounds as well as braille lettering on all hotel room signage and wayfinding signs to aid those with vision impairments. Auditory and spoken information needs to be accessible to people whose disabilities affect communication, including people who are Deaf or hard of hearing.

Individuals who have difficulty hearing rely on their vision to access auditory information, and may require the use of captions, Communication Access Realtime Translation (CART), and sign language interpretation. 18 The use of a visual alarm system, such as strobe lighting in fire alarms, is required throughout all common areas and guestrooms for this reason. Some other examples of auxiliary aids and services for deaf people include telephones compatible with hearing aids, text telephone devices, and closed captioning on all TV’s and video displays.

ADA vs Historic Buildings: Preserving America’s History

The easiest and most opportune time to incorporate barrier free design and ADA requirements is when dealing with new construction of a building. However, because the ADA did not pass into law until 1990, there are many buildings still standing today that were built  prior to the establishment of this regulation and therefore, are not accessible. There are many misconceptions as to whether alterations to historic or older properties are required to comply with the ADA, and if so, to what extent. Despite the age of the building, it is still required that all facilities that fall under Title II and III of the ADA eliminate all architectural and communication barriers where removal is readily achievable. 20 There is no “grandfather clause” that excuses an older building from meeting these standards. Alterations must comply with the ADA Standards unless it is technically infeasible to do so. Something is technically infeasible only if it would require removing or altering a load-bearing member that is an essential part of the structural frame, or because other physical constraints prevent modification or addition of features to comply with the ADAAG requirements.21 The ADA recognizes that not all specifications will be able to be incorporated into an existing historic building, which is why they provide a list of minimum requirements. Some of the minimum requirements include: providing a minimum of one accessible route from the site to an accessible entry, at least one accessible entry shall be provided, if toilets are provided, at least one toilet on an accessible route must be provided (a single unisex restroom may be used.), an accessible route shall be provided to all public spaces at the level of the entry, and displays and written information must be viewable by a seated person, including horizontal displays at 44″ maximum.

Older cities across America, such as Boston, Massachusetts, that were built in the seventeenth century, are home to many historical landmarks that are preserved and protected. In Robert Engel’s law review article titled, “The Americans with Disabilities Act and its Effect on Historical Preservation and Public Transportation,” he dives into the ongoing battle between the historic preservation societies and the ADA regulations. A large area of concern to the preservation community is how to provide accessibility in historic properties without compromising or destroying the historic significance of a feature of the building. These buildings are protected by the National Historic Preservation Act that was enacted by the National Park Service. The mandate requires that if any renovation or rehabilitation work is to be done to meet compliance, it must be done while still retaining the property’s historic character. There is one exception that the ADA Standards provides for the very rare occasion when pertaining to  National Historic Landmark properties. It states, “…in the occasional case where the nature of an existing facility makes it virtually impossible to comply fully with applicable accessibility standards through a planned alteration…, the alteration shall provide the maximum physical accessibility feasible.” The same minimum requirements described in the previous paragraph would apply to the historic buildings as well. Robert Engel continues in his article to describe how the ambiguous language regarding the application of ADA to historic properties has led to organizations interpreting the regulations in favor of preserving the architecture of a building and not necessarily prioritize the accessibility requirement. Because of this, the courts established the “Colorado Cross test” based on the case Colorado Cross Disability Coalition v Herman Family Ltd. In this case, the plaintiff was paralyzed from the chest down and required the use of a wheelchair. The plaintiff filed a suit to add four ramps to a historical block of Larimer Square in Denver, CO. To resolve the conflicts between disability rights and historical preservation, the Tenth Circuit created the Colorado Cross test. It requires that when a plaintiff brings a cause of action against a historical site for failure to meet ADA requirements, they have the responsibility to establish that the barriers preventing accessibility exist and that the method of removal of the barriers is readily available. The Tenth Circuit declared that each case should be ruled on the unique facts presented by the barrier and the historical landmark presented in the case. This precedent is still used today as reference to determine other cases involving historic properties.

Recommendations for Hotel Managers

The American Hotel and Lodging Association supports the protection of the rights of those with disabilities by ensuring that hotels are compliant. They have championed for the disabled community and have worked with hundreds of lodging establishments to ensure that their properties are compliant. As a manager of a hotel, it is imperative that the property is ADA compliant in all areas. Conferring with a third-party ADA consultant to conduct a survey of the property is a great starting point to assess if the property meets the requirements. Being proactive and addressing any concerns instead of waiting for a claim or suit to be filed is recommended. As a manager of a hotel, it is important to also be up to date on any amendments or changes to the law. While a formal legal amendment may not be passed every year, there are still ongoing changes as the world adapts to the new advancements. Participating in conferences or conventions surrounding ADA accessibilities and new technologies is one way a hotel manager can stay current on the issues. The ADA National Network is a great resource that provides hotel managers access to information regarding operations, employment, and training. They have also set up ten regional ADA Centers throughout the United States that host events that promote furthering education and protocols regarding ADA accessibility in the hospitality industry.26 Training all staff to know about all the features in an ADA guestroom and how to work any  ADA components such as a pool lift, electronic ramps or TTY devices is a considerable way to ensure that a guest can receive the same level of service as anyone else. The American Hotel and Lodging Association also provides programs to help educate managers and team members on how to better serve those with disabilities.

Conclusion

In summary, the Americans with Disability Act, although officially passed only thirty years ago, has shed light on a major crisis in our country that has existed for well over 100 years. It has been an instrumental piece of legislation in providing accessibility and inclusion to the disabled community. The hospitality industry has the responsibility and duty to be accessible to everyone, regardless of any disabilities or impairments. By providing properly designed environments that follow the ADA regulations, these establishments can be enjoyed by all.

Works Cited

 Access 4 All, Inc. v. The Atl. Hotel Condo. Ass’n, Inc., 2005 U.S. Dist. LEXIS 41601, 2005 WL 5643878 (United States District Court for the Southern District of Florida November 22, 2005, Filed ). https://advance-lexis-  com.ezproxy.fiu.edu/api/document?collection=cases&id=urn:contentItem:4JS1-KK20-   TVTD-0277-00000-00&context=1516831

CDC. “Disability Impacts All of Us Infographic.” September 16, 2020. https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts- all.html#:~:text=61 million adults in the highest in the South.

Chris. “ADA Requirements for Hotels – 2014.” June 29, 2014. Accessed December 2020. https://ada-pros.com/ada-requirements-for-hotels-2014/#:~:text=ADAAG requires at least 4,or hard of hearing individuals

Civil Rights Division, US Department of Justice (2009). “42 U.S. Code § 12102 – Definition of disability, Americans with Disabilities Act of 1990, As Amended”

Civil Rights Division, US Department of Justice (2009). “42 U.S. Code § 12182 – Prohibition of discrimination by public accommodations, Americans with Disabilities Act of 1990, As Amended”

EEOC (2008). “Americans with Disabilities Act Amendments Act of 2008, PL 110-325 (S 3406)”. eeoc.gov

Endelman. “Historic Buildings and the ADA.” https://www.endelman.com/our-practice/best-  practices/historic-buildings-and-ada.

Engel, Robert M. (2013). NOTE: The Americans with Disabilities Act and its Effect on Historical Preservation and Public Transportation. Health & Biomedical Law Society, 9, 297.  https://advance-lexis-com.ezproxy.fiu.edu/api/document?collection=analytical-   materials&id=urn:contentItem:58VX-GKT0-0240-Y08D-00000-00&context=1516831

“Hospitality & Disability: Operations.” 2020. https://www.adahospitality.org/content/Operations.

Kailes, June Isaacson, and Darrell Jones. “A Guide to Planning Accessible Meetings.” 1993. Accessed December 2020. https://www.adahospitality.org/accessible-meetings-events- conferences-guide/book.

Kelley, Gail S. “ADA Requirements for Historic Properties.” November 2014. https://www.structuremag.org/?p=7540.

Parrott-Sheffer, Chelsey. “Americans with Disabilities Act.” Encyclopedia Britannica. Accessed December 2020. https://www.britannica.com/topic/Americans-with-Disabilities-Act.

Terndrup, William. “How Is ADA Enforced?” March 17, 2020. https://adatile.com/how-is-ada- enforced/.

United States v. Days Inns of Am., 997 F. Supp. 1080, 1998 U.S. Dist. LEXIS 3269, 7 Am.

Disabilities Cas. (BNA) 1617 (United States District Court for the Central District of Illinois, Urbana Division March 16, 1998, Filed). https://advance-lexis-  com.ezproxy.fiu.edu/api/document?collection=cases&id=urn:contentItem:3S8Y-WV20-   0038-Y4F8-00000-00&context=1516831.

United States. Department of Justice. Civil Rights Division. 2010 ADA Standards for Accessible Design. 2010. § 608 Shower Compartments

— § 304.31 Turning Circular Space

— § 36.403 Alterations: Path of travel.

— § 904.4 Sales and Service Counters

— § 206.2.5 Restaurants and Cafeterias

— § 36.405 Alterations: Historic preservation

— § 36.402 Alterations: To the maximum extent feasible