#4 III-1.

2000 April 20, 1992

DJ 181-06-0002

Mr. William B. Ingersoll Ingersoll and Block 1401 Sixteenth Street, N.W. Washington, D.C. 20036 Dear Mr. Ingersoll: This letter responds to your August 21, 1991, letter on behalf of Marriott Ownership Resorts, Inc. (Marriott), requesting guidance on the application of certain provisions of the Americans with Disabilities Act (ADA) to the timesharing resorts operated by Marriott under its Vacation Ownership System. Specifically, you have requested guidance as to whether "timesharing that is sold in increments of one week or less is a public accommodation as that term is defined in the ADA." The ADA authorizes the Department to provide technical assistance to entities that are subject to the Act. This letter provides informal guidance to assist you in understanding how the ADA may apply to your client. However, this technical assistance does not constitute a determination by the Department of Justice of your client's rights or responsibilities under the ADA and does not constitute a binding determination by the Department of Justice. Based on our review of your letter and supporting materials, it is our understanding that the specific question you pose is the following: Is a vacation property owned in the form of ownership referred to by Marriott as "timesharing," and sold by Marriott in increments of one week or less, a "place of public accommodation" as defined in this Department's regulation

implementing title III of the ADA? See, 56 Fed. Reg. 35,544 (July 26, 1991) to be codified at 28 C.F.R. pt. 36. To be considered a place of public accommodation under the title III regulation, a facility must be operated by a private entity, its operations must affect commerce, and it must fall within one of the 12 categories listed in {36.104 of the regulation. Each category includes representative examples of covered facilities. However, the examples included are meant to be illustrative, not exhaustive. Thus, a facility does not have to be specifically listed in order to be covered. Therefore, in order for Marriott's timesharing resorts to be considered places of public accommodation, they must fall within one of the 12 categories. In this instance, the analysis turns on whether any given resort is a "place of lodging" such as an inn, hotel, or motel. These terms are not defined in either the Act itself or the title III regulation. However, the preamble to the title III regulation does note that the category "places of lodging" would "exclude solely residential facilities because the nature of a place of lodging contemplates the use of the facility for short-term stays." Thus, one factor that should be considered in determining whether a particular facility is a place of lodging is whether the facility is intended or used for, or permits short-term stays. Although the regulation does not define "short-term," the Department would consider stays of one week or less to be "shortterm" stays. While this interpretation may be consistent with certain Federal court precedents established under title II of the Civil Rights Act of 1964 and cited in the materials you provided to us, you should be aware that the Department may look to such precedents for guidance but does not consider itself bound by them in interpreting its ADA regulations. In addition to considering whether a given facility is intended or used for, or permits short-term stays, in making a determination as to whether a facility is a place of lodging, each entity should also consider the extent to which the facility does or does not share the characteristics of the examples listed as places of lodging. For example, one potentially significant difference between inns, hotels, and motels, as a group, and facilities held in Marriott's form of timeshare ownership is that, according to your April 23, 1991, letter to John Wodatch, timeshare owners are deeded a fee interest in the timesharing

resort. Obviously, a deeded fee interest differs from the interest normally conveyed to the patron of a hotel or motel. However, if, as you point out in the April 23rd letter, the fee interest conveyed is subject to recorded restrictive covenants that substantially restrict the "traditional possessory rights of ownership" and the properties are, in fact, operated in a manner very similar to the manner in which hotels are operated, timeshare facilities are more likely to be treated as places of lodging covered under the ADA. Based on the representations made in your April 23, 1991, letter, we believe that timeshare facilities in Marriott's Vacation Ownership System are nonresidential places of public accommodation. In reaching this conclusion we have considered the following factors to be of particular significance: 1. Ownership of timesharing units is sold in intervals of one week or less, which is consistent with the requirement that a place of lodging be a facility that is intended or used for, or permits short-term stays; 2. While ownership to individual units is conveyed in fee simple, recorded restrictive covenants substantially limit rights of ownership and owners have no right to occupy, alter, or exercise other control over any specific unit; 3. Owners of timesharing interests are not required to return to the same unit or project and may utilize various exchange options to exchange their units for units at other resorts; and 4. Marriott's timeshare accommodations are operated like hotels (i.e., reservations, central registration, and room assignments are required) by a company that is in the hotel business. We wish to stress that we have reached this conclusion based on your description of the ownership and operation of Marriott's Vacation Ownership System. Thus, this conclusion should not be viewed as a general statement of the Department's position with respect to other types of timesharing facilities; our position on this issue may well be different given a different set of facts concerning the ownership and operation of such facilities. As you note in your April 23, 1991, letter, as places of

public accommodation, timeshare facilities are subject to the title III requirements for readily achievable barrier removal; and any new construction or alteration of such facilities must follow the Accessibility Guidelines adopted as Appendix A to the Department's title III regulation. We would also like to point out that, as a public accommodation, Marriott is also subject to other significant non-discrimination requirements under title III of the ADA. For example, Marriott must provide auxiliary aids and services to guests with hearing, speech, or vision impairments, unless doing so would result in an undue burden or a fundamental alteration in the nature of the services or accommodations being offered. I hope this information has been helpful to you. Sincerely,

John R. Dunne Assistant Attorney General Civil Rights Division