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Posts Tagged ‘hospitality’

A Dog Walks Into a Bar with its Owner: Service Animals Welcome Accessories Please Leave at the Door

Posted on: October 9th, 2019

By: David Molinari

The Americans with Disabilities Act (ADA) provides people with disabilities equal access to employment, state and local government programs and goods and services.  Businesses open to the public including hospitality venues must comply with the ADA and are prohibited from discriminating against individuals with disabilities.  The ADA requires businesses (hospitality establishments) open to the public allow individuals to bring in their service animals even if the establishment has a “no pet” policy.

A trend encountered in the hospitality industry is clientele demanding the venue accommodate their pet who does not meet the requirements of a “service animal.”  Staff is often faced with an immediate decision that has rippling consequences; a possible violation of the ADA resulting in civil penalties, possible damages and an award of the opposing party’s attorney’s fees.

A service animal is any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability; including a physical, sensory, psychiatric, intellectual or other mental disability.  Service animals are working animals.  They are not pets.

Customers often blur the line with animals that provide emotional support, companionship or comfort.  These are not considered service animals because the animal does not perform a specific task associated with an individual’s disability.

The task performed by a service animal must be directly related to the disability of the person handling the animal.  Such tasks include, but are not limited to: guiding a person who is blind or has low vision, alerting a person with hearing loss, picking up or retrieving objects, alerting individuals to the presence of allergens, providing physical support or assistance with balance, assisting a person with psychiatric disabilities by interrupting impulsive behaviors.

For frontline staff dealing with customers in the hospitality industry, staff may not be able to immediately recognize a disability that is not obvious.  Therefore, staff should be trained to ask two questions: first, is the animal a service animal; and second, what task has the animal been trained to perform?

The hospitality venue and staff must refrain from asking about the nature or extent of the person’s disability, requesting the handler demonstrate the service animal’s task or requiring documentation proving the animal has been certified, trained or licensed.

A service animal must always be under the handler’s control.  Service animals must have harness, leash or other tether unless the handler’s disability prohibits such use or the animals’ task is adversely impacted by the use of a harness, leash or tether.

The hospitality venue must keep in mind that a service animal is a working animal; not a pet.  The staff must refrain from distractive actions around a service animal such as attempting to pet, feed or distract the animal.  Under no circumstances should the venue attempt to extract an extra fee or surcharge from a customer with a service animal.  This includes hotels that require a deposit for customers with pets, as well as restaurants, bars or other hospitality venues.

If a service animal is disruptive, threatening or not housebroken, the venue may ask the handler to remove the animal.  The venue must allow the individual with the disability the option of returning to the establishment without the animal.  Other customers who may have allergies or fears of dogs is not a valid reason for denying access to a disabled individual with a service animal.  The venue must try to separate the person with the allergy or other aversion from the disabled person with a service animal.

If further information is needed, please feel free to contact me at [email protected]; (619) 687-3000.

Puff, Puff, Veto!

Posted on: January 10th, 2018

By: Jason C. Dineros

This past Thursday, Attorney General Jeff Sessions rescinded the Obama-era’s relaxations for federal prosecutors of marijuana enforcement. This comes only four days into California’s open recreational use market, and potentially halts what has grown into a niche legal practice as well as a concerted training effort among hospitality operators over the almost five years the federal enforcement relaxations have been in place.

The Obama Administration’s federal enforcement relaxations for marijuana use in 2013, brought with it the development of a viable market industry from what was previously looked upon as taboo—akin to “that stoner stage you went through in high school, but grew out of.” As start-ups were popping up wanting to be frontrunners in an industry that had as much anticipation as whiskey distilleries in the years that followed prohibition, so did the need for legal consultation and representation.  No longer was the idea of marijuana dispensaries becoming as common as corner liquor stores still a far too laughable dream (or overly paranoid nightmare, depending on your take); and concepts such as edible bakeries, “weed lounges,” and cannabis-friendly restaurants were likewise materializing into reality.

But how does an attorney provide advice regarding the sale and distribution of a product that is illegal under federal law, but for all intents and purposes, permitted in 29 different states? Well the fallback rule that developed under the Obama Administration’s relaxations, at least from an ethical perspective, was that providing legal services to the cannabis industry was permissible so long as it did not violate state law.  And with this came an influx in the practice of cannabis law in 29 of the 50 states.

Further expanding to the social aspect of recreational marijuana, while any experienced bartender has likely taught or learned how and when to cut off an overly-imbibed guest, what protocols are in place for training “budtenders”? And even more importantly, for hospitality operators engaged in operations across different states, how can there be any uniform standard operating procedures when what is a legally viable source of potential revenue in one state, can expose the business to significant fines and potential closure in another?  Simply put, until the states begin to react one way or another to Attorney General Sessions’ heightened federal enforcement regulations, the cannabis industry remains one of the most potentially lucrative, risky, and unnavigated industries still in its infancy among the entrepreneurs, attorneys, and hospitality operators involved.

For further information or for further inquiries involving professional liability, commercial liability, or hospitality law, you may contact Jason C. Dineros, the Chair of the Hospitality Law Practice Team of Freeman Mathis & Gary, LLP, at [email protected].

Another Super Bowl in New Jersey? Unlikely!

Posted on: December 19th, 2017

By: Joshua G. Ferguson

A Third Circuit panel issued an opinion last week in an NFL fan’s class action alleging the National Football League violated New Jersey’s consumer fraud law by failing to make enough 2014 Super Bowl tickets available for sale, finding that the economic factors presented created a plausible theory that the league’s conduct inflated prices.

The three-judge panel reversed the district court’s decision to dismiss the claim brought by Josh Finkelman alleging that the NFL’s lottery ticket policy for the Super Bowl distributed a fraction of the tickets to the public. Plaintiff relied on a statute which requires the sale of 95 percent of all tickets of any event held in New Jersey.  In their amended complaint Plaintiff cited the opinion of sports economist Dr. Daniel Rascher’s that Finkelman paid more on the secondary market for his tickets to Super Bowl XLVIII than he would have had the NFL not withheld more than 5 percent of tickets from sale to the public, and in doing so violated the New Jersey Consumer Fraud Act.

In rendering the decision, The Third Circuit deferred the action to the Supreme Court of New Jersey to certify the meaning of the New Jersey ticket law statute and determine if the NFL’s violation falls within that statute.

For further information or for further inquiries involving hospitality law, you may contact Joshua Ferguson of Freeman Mathis & Gary, LLP, at [email protected].

Will the Las Vegas Tragedy Change the Hospitality Industry?

Posted on: December 8th, 2017

By: America Vidana

Hundreds of victims of the October 1, 2017 mass shooting in Las Vegas have filed several suits in both California and Nevada courts against Mandalay Bay, MGM Resorts and LiveNation. The victims accused the hotel operator, MGM Resorts International, and its subsidiary, Mandalay Corp, which owns the hotel, of failing to properly monitor the shooter’s activities, train staff members and employ adequate security measures.

Additionally, the lawsuits accused the concert promoter, LiveNation, and the concert venue owner, also MGM, of failing to design, build or mark adequate emergency exits and to properly train and supervise employees in an appropriate plan of action in case of an emergency.

In order to prevail in such cases, a plaintiff must prove that the premises operators were negligent and the incident was reasonably foreseeable. Given the instant facts and the history of lawsuits following mass shootings, this will be an uphill battle for the victims unless they can show Mandalay Bay, MGM Resorts and LiveNation were careless and could have done more to prevent the shooting.

The shooter, 64-year-old Stephen Paddock, was a retired multi-millionaire, who invested in real estate, gambled for fun and had no criminal antecedents. He reportedly was a “high-roller,” who was well-known in the gambling world and frequented casinos such as Mandalay Bay, for weeks at a time. By all accounts, the shooter did not display any unusual or suspicious behavior that may have alerted Mandalay Bay security of a potential threat to safety.

Arguments have been made that Mandalay Bay security should have been more vigilant of the 23 legally purchased guns, including high-caliber assault weapons, the shooter took to his room over the course of three days, or alternatively, that some inspection procedure, whether metal detectors or bag checks, should have been in place to detect such weapons. While Mandalay Bay, in addition to every major Las Vegas casino, spends hundreds of thousands of dollars yearly to catch illegal gamblers, it somehow failed to detect the plethora of artillery being transported through its casino floor. The shooter reportedly also installed cameras in the hallways, and declined room service for several days—bringing into question Mandalay Bay’s policies regarding room service and duration between checking a guest’s room.

Even more damaging to Mandalay Bay, a security guard was allegedly shot several minutes before the mass shooting ensued. Strangely, there was a six-minute lapse in Mandalay Bar’s response time from the initial shooting of the guard to the actual mass shooting. This will likely be one of the bigger issues MGM will face, as this arguably should have provided notice of the danger, and plausibly provided a reasonable opportunity to minimize, if not prevent, the casualties.

However, the litigation trail following mass shootings have largely favored the establishment. Notably, in a similar suit arising out of the Aurora, Colorado theater mass shooting at a showing of The Dark Knight Returns, the court dismissed claims of those injured against the theater because the crime was not foreseeable at the time and because the crime was an intervening and superseding cause of the harm. While not directly applicable in the Ninth Circuit, the court’s rationale and legal principles will surely be persuasive. But being the first such presentation of a case against the hospitality juggernaut, the court’s decision could set new precedent on industry standards for safety and emergency response.

For further information or for further inquiries involving hospitality law, you may contact America Vidana of Freeman Mathis & Gary, LLP, at [email protected].