Duff on Hospitality Law

Earlier this month, Stephen Barth and HospitalityLawyer.com hosted the most recent installment of their successful hospitality law conference held each February in Houston. This year’s conference saw attendance return to pre-recession levels with representation from many of the in-house legal departments of the largest national and international hotel operators. The conference dedicated the first day to three all-day pre-conference boot camps on real estate, privacy / PCI compliance and the unique issues faced by the restaurant and lodging in-house lawyer. I sat through the real estate presentations, which although a little slow at times (you can only define REVPAR so many times), did a reasonable job of summarizing the variety of issues associated with the development, purchase, sale and management of hospitality properties in one coherent presentation. Ruth sat through the privacy / PCI discussion and found it very informative. The second day was filled with a wide variety of topics – from alcohol compliance, to sweepstakes, to franchise negotiations, to receiverships to tips – in one of four breakouts dedicated to food & beverage, lodging, human resources and loss prevention. The highlight of the third and final day was the annual hospitality case update.

Greetings from an unusually cold Houston, location of the 2011 Hospitality Law Conference, sponsored by HospitalityLawyer.com. I attended a number of interesting sessions over the course of two and a half days including the one that is the topic of this post: legal concerns that arise with holding contests and sweepstakes that result in the award of prizes.

No doubt you’ve seen advertising for these kinds of promotions: “Submit your favorite photo of a stay at our hotel and win a free night!” “Leave your business card for our monthly drawing and win a chef’s menu dinner with wine pairings for 2!” “After your cucumber eye treatment, enter your name for a chance to win a shiatsu massage with reflexology finisher!”  Contests and sweepstakes are immensely popular marketing tools throughout all retail markets, including hospitality. I myself have shed business cards all over Seattle, chasing dreams of chic meals taken at funky, retro hotels (with free wi-fi). Contests and sweepstakes can be as simple as dropping a card in a fishbowl or as complicated as shooting, editing and submitting a polished six-minute animation short to be judged in a “contest of skill.”

A word on terminology: the speakers defined a sweepstakes as a promotion in which prizes are awarded by chance versus a contest (or contest of skill) in which entrants must perform an action—answer a trivia question, write an essay, paint a picture—in order to be judged for a prize. Prizes in contests are based on skill and not luck.

The primary focus of the session yesterday was the importance of making sure all sweepstakes and contests stay on the right side of the line that separates a fun and useful marketing tool from an un-fun, illegal gambling operation (lottery). Every state regulates gambling, games of chance, lotteries—in short, if you aren’t the government, or aren’t licensed by the government, don’t run a lottery.

Wednesday marked the end of another Americas Lodging Investment Summit (ALIS) Conference. This year's Conference celebrated the 10th anniversary of the venerable hospitality development and investment conference held each year in sunny Southern California.

In today’s post, HT&T team member Mike Brunet (Employment and Litigation) discusses soon-to-be-impactful revisions to the Americans with Disabilities Act (“ADA”), with a specific focus on how it may impact those in the hospitality industry.

Approximately six months ago, in July 2010, Attorney General Eric Holder signed final regulations revising the Department of Justice’s regulations governing the ADA. The revisions amend Titles II (applying to public entities) and III (applying to public accommodations and commercial facilities) of the existing regulations and -- with two important exceptions discussed below -- take effect very soon, on March 15, 2011. The remainder of this blog post discusses the basics of the revisions to the ADA that may be of interest to those in the hospitality industry.

Happy New Year (belated)! The new year means new opportunities, and in the Hospitality industry that means it’s events time! The calendar of upcoming events is varied, but here are a couple that I plan to attend:

ALIS (America’s Lodging Investment Summit): I will be attending this San Diego event, January 24 through 26. According to the website, ALIS is the “leading and largest hotel investment conference in the world, attracting more than 7,000 delegates from around the globe over the past three years.” If you plan to attend, and you’d like to get together, please email me.

2011 Hospitality Law Conference: Held at the Omni Houston Hotel in Houston, Texas, this event covers the latest trends and issues in hospitality law. This year, I’ll be speaking at the conference on the topic of distribution. I would love to meet up with you in Houston; just send me an email and let’s get together.

Of course, I’ll be providing updates and a thorough follow up after each conference. If there is a topic to be covered at either of these events that you’d like particularly to hear about, please let me know and I’ll do my best to cover it.

Tom Norwalk, President and CEO of the Seattle Convention & Visitor's Bureau has issued an Urgent Action Request. Yesterday, House Ways & Means Chair Rep. Ross Hunter's (D-Medina) released his proposed 2011 Supplemental Budget, which eliminates funding for activities to promote tourism, effective March 1, 2011 - three months earlier than anticipated. Clearly, this proposed budget bodes ill for Washington State tourism. The text of Tom's request is below. Please consider taking appropriate action:

The Washington State Liquor Control Board has issued a Notice of Rule Making for a proposed amendment to the Washington Administrative Code (WAC) prohibiting the manufacture, importing and sale of “alcohol energy drinks.” The Board defines alcohol energy drinks as any beverages containing beer, strong beer or malt liquor and “caffeine, guarana, taurine, or other similar substances.” The public may comment on the proposed rule until February 23, 2011.

This new rule is virtually identical to the emergency rule adopted by the Board on November 10, 2010, which is currently in effect and will continue until March of this year. Unlike the emergency measure, the proposed rule contains language making clear that the prohibition is not intended to extend to substances in which coffee and chocolate are added to alcohol. Irish coffees and liquored chocolates are still safe!

Given the recent attention paid by clients to local security issues (including the recent and well received Hotel Industry Security Forum sponsored with the Washington Lodging Association – see Ruth Walter’s recent post on this event), I thought it a good time to review the obligations imposed by law on hoteliers and restaurateurs in Washington and Oregon to protect their guests and customers from crimes committed by third parties.  In other words, what responsibility does a hotel or restaurant owner have for guests or customers who are injured (or whose property is damaged or stolen) by criminals.  As I explain below, the more a hotel or restaurant owners knows about potential criminal conduct at her establishment, the more likely it is that she may be held responsible for not warning and/or protecting her guests or clients against it.

This week, the Washington Lodging Association (WLA) brought together law enforcement officers, intelligence analysts and advisors from the Washington State Fusion Center and the Department of Homeland Security (DHS) to discuss hotel security, particularly in the context of terrorist attacks and large-scale natural disasters.

In this week’s “late due to Snowmageddon II” post, Diana Shukis, a partner in our Employment law practice group and long-time member of our Hospitality team, discusses the basic elements necessary to minimize your organization’s risk of harassment in the workplace, including a step-by-step approach to avoiding, and what to do in the event it occurs. Of course, the easiest way to ensure you have all the training and assistance you need is to give Diana a call.

Workplace harassment continues to be a serious concern because of its negative business impacts and serious liability risks for employers in all industries, including those in the hospitality community. It is vital for hotel managers and human resources professionals to review their organizations’ policies and practices regarding harassment and make any necessary improvements to avoid negative impacts. Workplace harassment based on race, ethnicity, disability or the perception of disability, sex, sexual orientation (in Washington and some other states), religion or age is prohibited by law.