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DJ 181-06-0002 Apr 20 1992 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. cc: Records; CRS Files; Oneglia; Friedlander; Wodatch; Pecht. :uddl:udd:pecht:ingersoll 01-00597

-2To 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 S 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. 01-00598

-3Based 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. 01-00599

-4I hope this information has been helpful to you. Sincerely, John R. Dunne Assistant Attorney General Civil Rights Division 01-00600

August 21, 1991 VIA MESSENGER Stewart Oneglia Chief Coordination and Review Section Department of Justice 320 First Street, N.W. Washington, D.C. RE: Request for Guidance Final Rule published by the Department of Justice ("Department") in the Federal Register on July 26, 1991 with respect to Title III of the Americans with Disabilities Act, Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities (the "Final Rule")

Dear Ms. Oneglia: On behalf of Marriott Ownership Resorts, Inc. ("Marriott"), we are requesting guidance as to the meaning of the term "shortterm stay" as used in the Department's Section by Section Analysis in the Final Rule with respect to the definition of public accommodations. On April 23, Marriott submitted comments to the Department with respect to the proposed rule making implementing

Title III of the Americans with Disabilities Act (the "ADA" or the "Act"), requesting confirmation in the Final Rule of Marriott's position that timesharing that is sold in increments of one week or less is a public accommodation as that term is defined in the ADA. A copy of Marriott's April 23 comments is enclosed for your reference. In addition, on March 14, I spoke at the public hearing in Washington, D.C. regarding this issue. At that time, the panel indicated that it was aware of this question and intended to address it in the Final Rule. Although we recognize that it was difficult for the Department to address the many individual questions that arose in the comments to the proposed rule, we were nevertheless disappointed to find no reference at all to timesharing or vacation ownership in the Final Rule. We were encouraged, however, by the Department's statements in the Section-By-Section 01-00601

Stewart Oneglia August 21, 1991 Page 2 Analysis and Response to Comments (the "Department's Analysis") that "... the nature of a place of lodging contemplates the use of the facility for short-term stays." (56 Fed. Reg. 35552; emphasis added). Although the Department's distinction between short-term stays and long-term stays was encouraging, the absence of any definition of a short-term stay has left Marriott, and the

timeshare industry, without the immediate guidance necessary to know whether or not they are required to comply with the provisions of the ADA. Given the approaching deadlines for removal of architectural barriers, as well as plans for future projects to be constructed, this places an undue burden on the industry. We are therefore requesting guidance as to whether a stay of one week or less constitutes a "short-term stay." As discussed in the attached comments, we believe that there is considerable legal basis to conclude that stays of one week or less constitute a short-term stay. In particular, please refer to our discussion of Title II public accommodations (Section II.A. of our comments, beginning on page 7) in which we cite several Federal court decisions interpreting the term lodging to transient guests, as used in the definition of public accommodations in Title II, to apply to lodging for one week or less. In its analysis, the Department repeatedly differentiates between short-term and long-term stays. For example, in discussing residential hotels, the Department states, Although such hotels or portions of such hotels may fall under the Fair Housing Act when operated or used as long-term residences, they are also considered "places of lodging" when guest of such hotels are free to use them on a short-term basis. We wish to emphasize that it is Marriott's position that its timeshare projects are not residential in nature, as that term has been interpreted in the context of the Fair Housing Act. Therefore, Marriott projects are not mixed use projects that allow both residential and short-term stays and should not be subject to both the ADA and the Fair Housing Act. Based on the Department's distinction between short-term and long-term stays and the legal precedent cited in the attached comments, we believe that projects in which timesharing that is sold in increments of one week or less are public accommodations which are covered only by the ADA. Because of the necessity to take immediate steps to remove architectural barriers and to design

01-00602 Stewart Oneglia August 21, 1991 Page 3 new construction, we would appreciate your comments and guidance on this issue as soon as possible. Sincerely, William B. Ingersoll WBI:SLV:pc Enclosure: April 23 Comments cc:w/copy of enclosure Irene Bowen Paul Hancock

01-00603

April 23, 1991

John L. Wodatch Office of Americans with Disabilities Act Civil Rights Division U.S. Department of Justice Rulemaking Docket 003 Box 75087 Washington, D.C. 20013 RE: Comments of Marriott Ownership Resorts, Inc. with respect to Timesharing and the Marriott Vacation Ownership System

Dear Mr. Wodatch: On behalf of Marriott Ownership Resorts, Inc., ("Marriott"), a subsidiary of the Marriott Corporation, we are submitting the following comments in response to the proposed rule making implementing Title III of the Americans with Disabilities Act ("ADA") or (the "Act") issued by the Department of Justice (the "Department") in the February 22 Federal Register (55 Fed. Reg. 7452) (the "Proposed Rulemaking"). By separate letter, Marriott is submitting comments on several provisions in the proposed rule

making. However, because of the importance to Marriott of confirming that timesharing that is sold in increments of one week or less is a public accommodation, as that term is defined in the Act, we are submitting separate comments on this issue alone. Since the enactment of the Americans with Disabilities Act of 1990 (the "ADA")1, there has been considerable confusion as to whether the ADA or the handicapped provisions in the 1988 Amendments to Fair Housing Act (the "Fair Housing Act")2 apply to timesharing. Historically, the timesharing industry has stressed compliance with Title II of the Civil Rights Act of 1964 ("Title

1 Americans with Disabilities Act of 1990, Pub. L. No. 101336, S 104 Stat. 327, (1990). 2 Title VIII of the Civil Rights Act of 1968, as amended, 42 U.S.C. S 3601 et seq. (1988). 01-00604 John L. Wodatch April 23, 1991 Page 2 II")3 because of the public accommodations nature of timesharing facilities. Marriott, a subsidiary of the Marriott Corporation, is a leader in the timesharing industry. Marriott's Vacation Ownership System currently includes seven timesharing resorts developed by Marriott and several other resorts under construction or in the planning stage.4

Marriott has been committed to non-discriminatory practices in all aspects of its business, and it has been particularly concerned about complying with the new requirements enacted by Congress regarding handicapped accessibility. It is clear that Congress intended to provide handicapped access to all facilities which are generally available to the public, including both public accommodations which are occupied on a transient basis and residential dwelling units. However, we believe that Congress did not intend timesharing to be covered by both the ADA and the Fair Housing Act. Further, even if some types of timesharing are covered by the Fair Housing Act, we do not believe that all types of timesharing, regardless of the length of stay of the owners, are subject to the Fair Housing Act. The Department recognized that the transitory nature of a stay as well as the length of stay is determinative when it stated in the Section by Section Analysis: Places of lodging (e.g. hotels and inns, primarily intended for transitory stays) are designated as places of public accommodation. Places used for longer stays (e.g. residential hotels) are not consider "commercial facilities" because they are residential facilities. (Emphasis added.) Based on the reasons expressed herein, we urge the Department to clarify the confusion by clearly stating in the final regulations that transitory timesharing facilities which are sold in increments of one week or less, are subject to regulation as public accommodations under the ADA. The following memorandum will provide a background on timesharing as it is structured today, with particular emphasis on

3 42 U.S.C. 2000 et seq. 4 Marriott has developed seven timesharing resorts in three states: Florida, South Carolina and California. New resorts are under construction in Florida and Colorado and resorts are also being planned in the Bahamas, Mexico and other national and

international locations.

01-00605 John L. Wodatch April 23, 1991 Page 3 Marriott's Vacation Ownership System. This will be followed by analysis of the legal basis for applying the ADA to timesharing, as well as a discussion of the inapplicability of the Fair Housing Act to timesharing which is sold in increments of one week or less. I. INTRODUCTION In addition to the case law and statutory interpretations outlined herein, there is a practical reason why timesharing such as the Marriott Vacation Ownership System should be covered by the ADA. ADA will provide immediate accessibility to individuals with disabilities at no personal cost. Under ADA, architectural and communication barriers in existing projects must be removed, when readily achievable, at no expense to the individual with a disability. Further, all alterations and renovations must meet the standards for new construction, as well as for alterations. Under the Fair Housing Act, a person with disabilities who wishes such modifications must make them at his own expense. This is unrealistic when a guest only spends one week a year at a resort. Similarly, under the proposed Architectural and Transportation Barriers Compliance Board ("ATBCB") accessibility guidelines, a percentage of each class of new units must be readily accessible to individuals with disabilities. The Fair Housing Act provides for less accessible units. For example, the proposed ATBCB guidelines require grab bars in accessible units; Fair Housing only requires reinforcement in the walls, but the handicapped must install grab bars at their own expense. Thus, confirming that timesharing that is sold in increments of one week or less is subject to the ADA will make the majority of timesharing in the United States more accessible to the disabled at no personal cost. Background Although there are many types of timesharing, all timesharing is sold as a mechanism which allows individuals to

assure the availability of transient vacation accommodations of a short duration, typically one week intervals. There are four essential elements in the structure of any timeshare project: the interest, the unit, the interval and the exchange. Interests. There are two basic types of timesharing interests - fee and non-fee or "right to use." In fee timesharing, the purchaser receives some type of deeded interest - either an undivided percentage interest in the entire project or in a specific unit. Right to use timesharing is generally structured as a club membership in which the purchaser receives the right to use a certain type of unit at a timeshare project for a specified number of years. All of Marriott's timesharing resorts are structured as some type of fee timesharing.

01-00606 John L. Wodatch April 23, 1991 Page 4 Units. Although Marriott owners are deeded an interest in a specific unit, they waive the right to use that specific unit under the recorded covenants and restrictions for the project. Instead, owners may only use one of several units of the type in which an interest was purchased, i.e., 1 bedroom, 2 bedroom, etc. Owners have absolutely no individual control over the units and are prohibited from altering them in any manner or from installing furnishings or fixtures. Further, the recorded covenants and restrictions prohibit the use of a unit as a permanent residence. Therefore, few, if any, of the traditional possessory rights of ownership are available to Marriott timeshare owners. The emphasis is on the vacation experience, not on ownership. Timeshare owners occupy standardized units similar to hotel suites that are designed for the transient use of the public. The units are identical both inside and outside, with floor plans that facilitate interchangeability. Interior furnishings are identical, from furniture to color schemes. Linens, towels, tissues, utensils, ashtrays, etc. are provided by the timesharing

facility management group, just as in hotels. A unique feature in Marriott's California timesharing project are "lock-out" units, in which a second or guest bedroom can be physically locked off from the rest of the unit to create two usable units - a master or one-bedroom apartment and a onebedroom guest suite. Owners may use each of the two separate halves of the unit in their appropriate season. Or they may rent or exchange either half through the exchange programs described below. Intervals. Timesharing involves the concept of purchasing the right to use accommodations for a defined time period or "interval." Marriott timesharing intervals are sold in one week intervals. There are two types of intervals - fixed and floating - with variations within each type. Fixed time generally refers to the right to use a unit during a specific week each year. However, it may also refer to a specified season. In projects with floating time, all owners must reserve their time, usually on a first-come, first-served basis. Although the organizational structure varies from resort to resort, except for a few units in the first two resorts developed by Marriott, all of the units in the Marriott Vacation Ownership System are subject to floating time. Under Marriott's floating time program, all owners are required to reserve the use of a unit of the type in which their interest was purchased within the season of the week they purchased. For example, a purchaser of an interest in Unit 100, a 2bedroom unit, for the first week in August, could reserve any available 2-bedroom unit during the summer season. Owners are

01-00607 John L. Wodatch April 23, 1991 Page 5 requested to submit four choices in order of preference. The management company assigns the weeks on a first-come, first-served basis; however, the actual units are not assigned until the time

of check-in. Under this program, there is no anticipation nor likelihood of an owner staying in the same unit each year or even of vacationing during the same week each year. The documentation for all of Marriott's timesharing resorts permits two flexible features which add to the transient nature of the occupancy - "odd-even year usage" and "split week usage." The odd-even year program permits owners to use a unit at a specific timesharing resort every other year rather than annually. In addition, a split week program has been implemented at the Desert Springs Villas Resort in California. Under this program, an owner may divide the normal seven-day use period into two separate use periods of three and four days during the same season as the week they purchased. When the split-week program is combined with the "lock-out" feature, as described above, owners may use, rent or exchange the separate halves of their units for a total of four periods each year - two three-day periods in one half of the unit and two four-day periods in the other half. Marriott timeshare accommodations are similar to hotel accommodations in additional respects: central registration, checkin and check-out, and room assignment is required; keys are distributed and collected as in hotel facilities; and all maintenance and housekeeping functions are the responsibility of management, not of the guests. Utilities are usually mastermetered and the expense covered out of the facility's operating budget. In short, Marriott timesharing purchasers are not buying an interest in a residential unit; they are buying usage of vacation accommodations which can be used, rented or exchanged from one project to another. The vacation experience is reinforced by the exchange systems, in which owners may exchange a week in their project for a week in a project in another location. Exchange. The nature of timesharing as transient vacation accommodations is further underlined by the existence of exchange systems. Virtually every timesharing project participates in some type of exchange system, as timesharing developers have found that people will not buy timesharing if they are limited to returning to the same project year after year. Almost all timeshare owners utilize the exchange during their period of timeshare ownership, with over 75% maintaining their affiliation with an exchange system in anticipation of exchanging their vacation week for a week at another project. Industry figures indicate that over

one-third of exchange members exchanged their unit for another in 1990, with this percentage increasing each year. Marriott's

01-00608 John L. Wodatch April 23, 1991 Page 6 statistics are even higher, showing that owners in the Marriott Vacation Ownership System utilize the exchange systems provided more than 50% of the time, depending on the resort and the length of ownership. Marriott timesharing resorts offer two exchange options to their owners. Marriott is affiliated with one of the two major exchange companies, Interval International, Inc. In addition to the external exchange program with timesharing projects around the world, Interval International operates a special internal exchange program for Marriott timesharing resorts under which owners at Marriott resorts are given priority over other Interval International members in exchanging their time period for time in another Marriott timesharing resort. A final benefit currently offered to all Marriott owners is the Honored Guest Awards program. This program substantially broadens the bundle of rights purchased with a timeshare interest. The Honored Guest Awards program is similar to the airline frequent flyer programs. Originally designed for guests at Marriott hotels, owners of timeshare interests in Marriott timesharing resorts are currently eligible to participate in this program.5 Members may earn points that can be accumulated and redeemed for future stays at various Marriott hotels, free or discounted airline tickets, rental cars, etc. Marriott timeshare owners can earn Honored Guest Awards points by assigning the use of their unit to Marriott during any given year instead of using it personally. In addition, points are sometimes given as a sales incentive. Clearly, timesharing is appropriately seen as a transient public accommodation, which is differentiated from other public accommodations by virtue of the concept of a pre-purchase which

assures the availability of a vacation experience in a standardized setting. Marriott sales and owner literature emphasizes the many ways that owners may use their floating time: personal use, the internal Marriott exchange, the external Interval International exchange, rental to third parties or the Honored Guest Awards program. None of these features are characteristic of a residential unit that an owner expects to return to year after year. Instead, the one week periods, floating time reservation system, flexible features in some resorts such as split weeks and lockout units and the Honored Guest Awards program are all typical of transient public accommodations such as hotels which are subject to the ADA.

5 Like the hotel program, the Honored Guest Award program for timeshare owners may be changed or eliminated at the discretion of Marriott. 01-00609 John L. Wodatch April 23, 1991 Page 7 II. TIMESHARING AS PUBLIC ACCOMMODATIONS UNDER TITLE II AND THE AMERICANS WITH DISABILITIES ACT. A. Title II Because of the relationship between public accommodations under Title II and public accommodations under the ADA, it is first necessary to address the application of Title II to public accommodations such as Marriott timesharing. Marriott views its timesharing facilities as public accommodations for transient guests that are regulated by Title II. Section 2000a(b)(1) of Title II includes as public accommodations, "any inn, hotel, motel, or other establishment which provides lodging to transient guests...." The legislative history regarding the scope of Title II differentiates lodging for transient guests from permanent residen-

tial housing: Only public establishments furnishing lodging to transcients [sic] would be within this subsection. Establishments furnishing lodging to guests of a permanent duration, or to guests of an indefinite duration having no fixed intent to leave, as in the case of a boarding house, would not be included.6 Similarly, the following explanation of the transient guest requirement, submitted by U.S. Attorney General Kennedy during the extensive hearings on the Civil Rights Act of 1964, emphasizes that transient guests were intended to be non-permanent in nature: The "transient guest" requirement exempts establishments, like apartment houses, which provide permanent residential housing. For example, apartments rented on month-to-month tenancies automatically renewed each month unless specifically terminated, are exempted.7 Federal courts have interpreted the term "transient" to apply to lodging for one week or less. In U.S. v Beach Associates,

6 S. Rep. No. 872, 88th Cong., 2nd Sess., reprinted in 1988 U.S. Code Cong. & Admin. News 2355, 2356. 7. Hearings Before Subcommittee No. 5 of the Committee on the Judiciary, House of Representatives, 88th Cong., 1st Session, Part II, Series No. 4, p. 1402. 01-00610 John L. Wodatch April 23, 1991 Page 8

Inc.8, the court held that beach apartments which were rented by the week were "lodging by transient guests" within the meaning of section 2000a(b)(1)9. Affirming the decision in Beach Associates, the court in U.S. v. Young Men's Christ. Ass'n of Columbia, S.C.10, construed "transient" as including "lodgers of a week or less." Although there was disagreement between the parties as to whether the YMCA rented accommodations for less than a week, the record established that accommodations were rented for no more than one week.11 Citing Beach Associates and United States v. Sadler (No. 570, E.D. N.C., January 15, 1968), the court stated: I feel obliged to accept the construction of "transient" adopted in these decisions. Since the defendant concedes that it is its policy to rent rooms in its dormitory by the week, it follows that, under the construction adopted in the Beach Associates Case, the defendant does provide, as I have concluded, lodging for "transient" guests within the meaning of 42" U.S.C. section 2000a(b)(1).12 The one week threshold in Beach Associates and Young Men's Chris. Assn' is analogous to the sale of timesharing in increments of one week or less. Equally important is the nonresidential nature of the facilities, a point which is emphasized in the ADA. B. Americans with Disabilities Act of 1990 (the "ADA")

Title III of the ADA is entitled "Public Accommodations and Services Operated by Private Entities." The definition of "public accommodations" in the ADA is almost identical to the definition in Title II - "an inn, hotel, or other place of lodging...."13 Although the term "transient guests" is not included in the ADA definition, both the House and the Senate reports state

8 286 F.Supp. 801 (D.C. Md. 1968). 9 Id. at 808. 10 310 F.Supp 79 (D. S.C. 1979) 11 Id. at 82. 12 Id. 13 Section 301(7)(A). 01-00611 John L. Wodatch April 23, 1991 Page 9 that "[O]nly nonresidential facilities are covered by this title."14 A one week stay in a timesharing resort cannot be deemed to be residential in any sense of the word. Timesharing units are nonresidential. Even when there is an ownership interest, permanent residence is prohibited and owners have no possessory rights in their units. Congress, in enacting the Americans with Disabilities Act, extended the protection to the handicapped afforded in the Fair Housing Act to residential facilities to nonresidential public accommodations such as timesharing resorts. II. FAIR HOUSING ACT Congress did not specifically include timesharing facilities in the 1988 Amendments to the Fair Housing Act; however, HUD, in its Section by Section Analysis of the Final Fair Housing Accessibility Guidelines, stated that "... the fact of vacation timesharing ownership of units in a building does not affect whether the structure is subject to the Act's accessibility requirements."15 We believe this statement is incomplete. Although the fact of vacation ownership should not affect whether a structure is subject to the Fair Housing Act, the length of stay, based on a timeshare owner's interest, should be determinative. The underlying policy of the Fair Housing Act is "to provide, within constitutional limitations, for fair housing throughout the United States."16 "Housing" is not defined in the

Act, nor is the term used to any extent. Instead, the focus is on "dwellings," which are defined as: ... any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building structure, or portion thereof.17

14 H.R. Rep. No. 101-485, Part 2, 101st Cong., 2d Sess, at 99. See also, S. Rep. No. 101-16, 101st Cong., 1st Sess., at 59. 15 Comments to Final Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 at 9482 (March 6, 1991). 16 Id. at S 3601 (emphasis added). 17 Id. at S 3602(b) (emphasis added). 01-00612 John L. Wodatch April 23, 1991 Page 10 The application of the Act to timesharing that is sold in increments of one week or less hinges on whether timesharing units are "dwellings." The central concept in the definition of "dwelling" is the term "residence." It is the consistent emphasis on residence as opposed to transient accommodations that distinguishes traditional housing units from timesharing units. Although the legislative history of the Act is meager due to the lack of committee reports and other relevant materials, the background events against which the Act was passed, such as the urban riots of 1967, indicate that a major concern was segregation in residential neighborhoods.18 Case law is equally sparse. The

few courts that have addressed the question of whether the Act applies to a particular structure have focused on the term "residence." In United States v. Hughes Memorial Home19, the court held that the Act applies to a children's home in which the average stay was four years. In its analysis, the court stated "[W]hether the Home is within the scope of the prohibition in section 3604(a) thus turns on whether it is "occupied as a ... residence."20 Because "residence" is not defined in the Act, the court looked to its ordinary meaning, quoting from Webster's Third New International Dictionary: a temporary or permanent dwelling place, above or habitation to which one intends to return as distinguished from the place of temporary sojourn or transient visit [.]21 The transient nature of accommodations has been an essential element in deciding whether a structure is a "dwelling." In Patel v. Holley House Motels,22 the court held that a motel was not a "dwelling" under the Act. Citing the above definition of a residence in Hughes Memorial, the court stated: 18 See Laufman v. Oakley Building & Loan Co., 408 F. Supp, 489, 496-97, quoting from The Report of the National Advisory Commission on Civil Disorders (1968).

19 396 F.Supp. 544 (W.D. Va. 1975) 20 Id. at 549. 21 Id. 22 483 F.Supp 374 (S.D. Ala. S.D. 1979). 01-00613

John L. Wodatch April 23, 1991 Page 11 It is clear that the Palms Motel is an establishment which provides lodging to "transient" guests. The Palms Motel is a "public accommodation" as distinguished from a "dwelling," see Title II, Civil Rights Act of 1965 (Public Accommodations), 42 U.S.C. S 2000a(b)(1), and Plaintiffs, therefore, have no claim under the Fair Housing Act.23 Using the same rationale, the district court in Baxter v. City of Belleville, Ill.24, held that a home for AIDS victims was subject to the Act, stating, "[A]lthough the length of the residence may vary, the persons who will reside at [the home] will not be living there as mere transients."25 The most recent case to address the definition of a dwelling is U.S. v. Columbus Country Club26, which involved the rental of summer bungalows belonging to a private club. The Columbus Country Club was a non-profit social organization whose "annual" members owned the land collectively, which it leased to its annual members for a fee. However, the annual members owned their cottages.27 Members could spend up to five months a year in their bungalows and most returned each summer. The court quoted, in part, from R. Schwemm, a professor of law at the University of Kentucky: Title VIII "would presumably cover... facilities whose occupants remain for more than a brief period of time and who view their rooms as a residence 'to return to.'"28 To better understand the court of appeal's decision, the full passage from which this quote was taken is reproduced below: 23 Id. at 381. 24 720 F.Supp. 720 (S.D. Ill. 1989). 25 Id at 731. 26 915 F2d 877 (3rd Cir. 1990).

27 U.S. v. Columbus Country Club, No. 87-8164, Lexis Slip op. 14757 (E.D. Pa. 1989). 28 Id. at 881, quoting from Robert G. Schwemm, Housing Discrimination Law, 53 (1983).

01-00614 John L. Wodatch April 23, 1991 Page 12 Other courts have agreed with Hughes Memorial that temporary residence cases should generally be decided by looking to whether the occupants intend to remain in these residences for any substantial period of time. If occupancy is merely transient, as would be the case with most motel and hotel rooms, the property may be viewed as something less than a dwelling and therefore not subject to Title VIII. On the other hand, Title VIII has been held to apply when a longer term occupancy is involved as in Hughes Memorial and in the monthly rental of a mobile home site. If this principle is followed, the statute would presumably cover boarding houses, dormitories, and other facilities whose occupants remain for more than brief period of time and who view their rooms as a residence "to return to." 29 After citing Professor Schwemm, Hughes Memorial, Holley House Motels and City of Belleville, the third circuit held: We agree with these cases and hold that the central inquiry is whether the defendant's annual members intend to remain in the bungalows for any significant period of time and whether they view their bungalows as a place

to return to.30 Timeshare units have none of the traditional attributes of a residence, but are merely transient vacation accommodations. Unlike the members of the Columbus Country Club, Marriott timeshare owners purchase intervals of one week, hardly a "significant period of time." Members of the Club returned to the same bungalow year after year. Timeshare owners of one week intervals do not intend to return to their resorts each year, as evidenced by the use of the exchange systems. Columbus Country Club members owned their bungalows, which could be permanently furnished and altered according to each owner's wishes. They were entitled to the traditional possessory rights of ownership. Not only are many timeshare owners denied the use of the same unit each year, but, like hotel guests, they are never permitted to furnish a unit or to make any type of alteration, however temporary. 29 Schwemm at 53. 30 Columbus Country Club at 881.

01-00615 John L. Wodatch April 23, 1991 Page 13 IV. CONCLUSION

Based on the above and because ADA provides more accessibility at less personal cost to individuals with disabilities, we feel that the final rule should clarify that timesharing, such as Marriott's, which is sold in increments of one week or less, is a public accommodation which is covered by the ADA. Such timesharing is sold and used as transient vacation accommodations that are most analogous to hotel use; therefore, such timesharing units

should be regulated as public accommodations under the ADA. The entire nature of timesharing is nonresidential. The emphasis is on variety of vacation use, not on the unit itself. The district courts in Beach Associates and Young Men's Christ. Assn explicitly held that lodgings which are used for periods of one week or less are covered by Title II. It follows that timesharing interests that are sold in increments of one week or less should also be covered by Title II. As a public accommodation, timesharing should also be subject to the ADA. We wish to stress that Marriott does not wish to avoid civil rights or handicapped accessibility regulation. In fact, as stated herein, we believe that by confirming that timesharing that is sold in increments of one week or less is subject to the ADA, the Department will provide immediate accessibility in such projects to individuals with disabilities at no personal cost. Sincerely, William B. Ingersoll WBI:SLV:pc 01-00616