This decision illustrates both the general risk of club liability when liability waivers are unclear and when a club does not follow its written management policies and the unique risk of club liability when a club offers child care. In this case, a member's child was injured playing dodgeball in the club's childcare program. The trial court ruled that (i) a release signed by his father barred the claims, (ii) there was no evidence showing the club's conduct amounted to gross negligence, and (iii) the injuries were an inherent risk in dodgeball. A finding of gross negligence was relevant because in California, a liability release for gross negligence is generally unenforceable. In an unpublished opinion, the Court of Appeals reversed and held that there were triable issues of material fact regarding each of the trial court's findings.
The Equal Rights Center based in Washington, D.C. has recently published a short and helpful booklet for users of service animals and other types of assistive animals. It is a “users” guide for persons seeking accommodations for their service animals, including advocacy tips and resources for reporting violations. The hospitality industry is often at the forefront of accommodating guests, and this publication is a useful and simple tool to better understand how and when to accommodate guests.
One important point for the hospitality industry is that under the ADA, public places, such as hotels, must provide reasonable modifications for service animals. Under federal law a service animal is a dog. There are other types of assistive animals that provide emotional and therapeutic support, but only dogs are considered service animals.
In addition to the provisions about service animals, the Justice Department’s ADA regulations have a separate provision about miniature horses that have been individually trained to do work or perform tasks for people with disabilities. Miniature horses generally range in height from 24 inches to 34 inches measured to the shoulders and generally weigh between 70 and 100 pounds. Hotels would be wise to review their service animal policies and make modifications where necessary to permit miniature horses where reasonable. The federal regulations set out four assessment factors to assist entities, like hotels, in determining whether miniature horses can be accommodated in their facility. The assessment factors are (1) whether the miniature horse is housebroken; (2) whether the miniature horse is under the owner’s control; (3) whether the facility can accommodate the miniature horse’s type, size, and weight; and (4) whether the miniature horse’s presence will not compromise legitimate safety requirements necessary for safe operation of the facility.
[*Nelson Migdal serves as a Commissioner on the Montgomery County Commission of Persons with Disabilities.]
Getting the Word Out - It's all about Marketing - The Interplay between Owner's and Brand's Priorities
At first blush one would think that a hotel marketing plan would equally benefit the owner of the specific hotel and the brand under which the owner’s hotel is operated. Clearly, marketing the owner’s hotel and marketing the brand benefit both the owner and the brand. However, upon closer investigation, the owner’s interests and the brand’s interests are quite different when it comes to “getting the word out” and marketing. Our colleague Tara Gorman's article in this week's Hotel Business Review, "Getting the Word Out - It’s all about Marketing – The Interplay between Owner’s and Brand’s Priorities" will delve into the commonalities and the tension between owner and brand in the marketing arena.
This decision illustrates the importance of reviewing and considering the impact of restrictive covenants on operations of a club or marina before acquiring or restructuring it. The Court ruled on a number of issues related to the restrictive covenants in a residential community in litigation between the yacht club in the community and the lot owners. Two issues in particular were crucial to the yacht club structure and operations.
Caley vs. Glenmoor Country Club, Court of Appeals of Ohio, Fifth District, Stark County (November 4, 2013)
Disputes between clubs and members who hold refundable memberships have become common in an environment in which clubs have long membership resale lists. In this case in which resigned members demanded an immediate refund of initiation fees and challenged being prohibited from facilities use after resignation, the court relied solely on the club governing documents and chose to ignore claims by members of verbal representations and a written policy outside the governing documents cited by the Club. A summary of how the court considered each issue follows:
iGlobal Forum Chairman Nelson Migdal Highlights the Dynamics of International Law in the Hospitality Law Sector
Recently, our very own Nelson Migdal, Co-Chair of Greenberg Traurig’s Hospitality Group, joined iGlobal Forum’s 3rd Global Hospitality and Lodging Investment Summit as the chairman and as a moderator for the opening panel session on the market outlook for the hospitality and lodging sector. Nelson shared with attendees his extensive experience working in the hospitality industry for the last 30 years and lessons learned from his direct involvement in the sale, purchase, and financing of hospitality assets, as well as the relationship between owners and managers through management, franchising and licensing. Read iGlobal Forum’s full interview with Nelson.
Branded residential projects offer all the comforts of "home" with the luxury, prestige and high level of services offered at a hotel. This is not as easy as it may appear at first blush. Savvy developers are jumping into the branded residential sector with an eye toward high level design and quality, as well as, a keen sense of what the potential purchaser is ultimately seeking. The key to a successful branded residential project is the integration of the hotel services and amenities with the security and privacy of residential living. If well done, this can be quite profitable for the developer as the branded residential real estate market is on the upswing with enhanced sales velocity over unbranded residential real estate by 20 - 30 percent, especially in emerging markets.
Our colleague Tara Gorman's recent article in, Hotel Business Review, "Residential Reality - The Reemergence of Branded Residential Reality" takes an in-depth view at branded residential realty and recent reemergence of branded residential realty.
Earlier this month, New York State voters approved a Constitutional amendment to authorize casino gaming in the state. Implementation of the amendment, including the process for siting of the casinos and selection of casino operators, will begin shortly in accordance with legislation enacted during the 2013 legislative session (the “Gaming Legislation”). For more information on the Gaming Legislation, click here to view the GT Alert on this topic. In this GT Alert, Mark Glaser, Marlon Goldstein, Robert Harding and Martha Sabol discuss the gaming legislation and the process for selection of casino sites and operators. Those interested in participating in the process should move quickly to understand the many nuances of the legislation and the selection process.
Midnight Raid 2.0, Hotel Management Agreements Under Siege - Hot Topic - Georgetown University Law Center's Hotel & Lodging Legal Summit 2013
Midnight Raid Panel Grabs Attention. Hotel Management Agreements and the midnight raid once again took center stage recently at the Hotel & Lodging Legal Summit sponsored by the Georgetown University Law Center, and was the topic of discussion among attendees long after the panelist had concluded their final remarks. The panel of very seasoned and experienced hospitality professionals examined the “midnight raid” method for the replacement of hotel management in light of recent case law, and offered insights for future agreements and conduct. Some of the “take-aways” were that the rapid and unplanned transfer of hotel management can create disruption of hotel operations adversely impacting the guest, the departing manager and the incoming manager. Even if a hotel owner desires to oust the manager, it can be done in accordance with the management agreement with far less drama and disruption.
The Ninth Circuit Federal Court of Appeals in Salemeh, et al v. Tarsadia Hotels, et al, reviewed the question “Is it real estate or is it securities” de novo. This required the Court to thoroughly review the state and federal securities laws, as applied to condominium unit offerings. The Court held that a properly structured voluntary rental program offering is the sale of real estate, and does not convert hotel condominium units into securities. What made this case even more intriguing is that the SEC filed an amicus brief (“friend of the court”) suggesting that if the goal was to operate the condo units as a hotel – then the venture was a security. The Court came down in direct opposition to the SEC and the bottom line is if the condo offering, sales program and rental program are properly structured – then the sale of condo units are the sale of condo units – aka real estate, dirt, nothing more! For a more thorough analysis of the holding of the Court see the GT Alert.