About a year ago, I discussed on my blog the case of MaGee v. Coca-Cola Refreshments USA, Inc., a published decision from the Fifth Circuit, holding that a vending machine was not a place of public accommodation and therefore, Coca-Cola’s machines did not have to comply with the ADA. The case was appealed to the United States Supreme Court, and the United States Supreme Court asked the Department of Justice to weigh in on whether it should grant certiorari. The Department of Justice has now weighed in. That brief bears looking at because it also suggests how the Department of Justice might react to website accessibility lawsuits under title III of the ADA. The brief is divided into the categories of highlights and takeaways. The reader, of course, is free to focus on either or both of the categories.

I

Highlights

  1. Beverage vending machines are not generally perceived as discrete businesses and lack the hallmarks of the statutorily enumerated sales or rental establishments appearing in 42 U.S.C. 12181(7)(E).
  2. Just because a vending machine is not a place of public accommodation, that doesn’t mean the ADA doesn’t kick in for the place of public accommodation hosting the machine.
  3. Vending machines do not fall into the catchall category of other sales or rental establishments because otherwise why would the statute list various types of sales or rental establishments in the first place. That is, when a broad catchall phrase follows a list of specific examples, the Canon of construction, ejusdem generis, dictates that general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.
  4. The word “establishment,” suggests a substantial stand-alone place of business, and an ordinary English speaker purchasing a drink from a vending machine would not typically describe such an act as a quick visit to a sales establishment. Dictionary definitions are in accord with this line of thinking.
  5. The Canon of construction noscitur a sociis also dictates against finding a vending machine as a place of public accommodation because that Canon of construction says a word is given more precise content by the neighboring words with which it is associated. The five specific examples of a sales or rental establishment in 42 U.S.C. 12181(7)(E) include a bakery, grocery store, clothing store, hardware store, and shopping center. All of those businesses listed are businesses: selling goods to the public; having a discrete standalone location or identity; and being operated by an on-site proprietor or employees.
  6. Vending machines lack the features characteristically associated with the listed sales establishments in 42 U.S.C. 12181(7)(E). Such characteristics are two: 1) Vending machines do not have a standalone location or identity. That is, vending machines are generally thought of as a furnishing, amenity, or piece of equipment, rather than as a discrete business; and 2) vending machines operate without the assistance or oversight of a proprietor or employees. Vending machines are unstaffed pieces of equipment performing a basic, fully automated task by exchanging currency for a beverage.
  7. A standalone entity is not necessary for an entity to be considered a place of public accommodation. For example, a place of public accommodation may sometimes be located inside another without forfeiting its distinct identity. For example, a coffeeshop remains a place of public accommodation even when it is located within a hotel or a department store.
  8. Sales or rental establishments are also not categorically limited to businesses staffed by human proprietors or employees. Congress by including a catchall provision to facilitate the ADA’s application to new businesses utilizing technologies or methods of operation unknown when the statute was enacted in 1990 means that you could still have a place of public accommodation under title III where a business has developed sophisticated automation capable of performing complex transaction closely resembling or fully replacing traditional establishments listed in title III. In such a situation, a store would qualify as an ADA sales establishment even though automated devices are performing the function human employees would have otherwise performed at the time the ADA was enacted. In a footnote, the Department of Justice says that none of the categories listed in 42 U.S.C. 12181(7) are categorically limited to businesses staffed by human proprietors or employees.
  9. Vending machines were long in business prior to the ADA being enacted, but yet Congress did not see fit to include vending machines as a place of public accommodation. Had they intended to do so, they could have simply included vending machines in the definition of a place of public accommodation.
  10. It makes good practical sense for the operator of the public accommodation hosting the vending machine to be responsible for ensuring that the machines are accessible to persons with disabilities. After all, it is the operator of the place of public accommodation that is better suited to determine the most efficient means of complying with the ADA. For example, some operators prefer buying or leasing accessible vending machines. However, others might choose instead to install the machines at locations within their establishment where their employees are available to assist customers with disabilities.
  11. DOJ implementing regulations 28 C.F.R. §36.304(b)(4) treats vending machines as a type of furnishing appearing within a public accommodation. The 2010 ADA standards for Accessible Design go about it in the same way by mandating that at least one type of machine be made accessible rather than all individual machines.
  12. Plaintiff has historically obtained relief for title III violations involving traditional vending machine by suing the owner or operator of the place of public accommodation rather than the manufacturer of the vending machine. In this situation, both the hospital and the bus station that contain the machines are undoubtedly places of public accommodation.
  13. The debate in the courts about whether the ADA extends beyond physical locations simply does not apply because a vending machine is not a place of public accommodation.
  14. No court has suggested that it matters whether patrons must cross a threshold to enter businesses before suing under the ADA (but see takeaways section below).
  15. The case is not a suitable vehicle for addressing whether title III apply to nonphysical establishment since the petitioner encountered Coca-Cola’s machines in person and not by telephone or over the Internet.

II

Takeaways:

  1. DOJ is not correct when it says that no court has required a physical presence. We discussed here one of those cases, Gomez v. Bang and Olufsen America, Inc.
  2. DOJ’s statement that 42 U.S.C. §12181(7) is not limited to businesses staffed by human proprietors or employees is absolutely huge. That is, DOJ is specifically recognizing that technology has evolved and is evolving where businesses are now capable and are becoming capable of performing complex transactions resembling or fully replacing traditional establishments in title III. To my mind, that statement means that the DOJ is adopting the approach used by the Vermont District Court in ScribD, discussed here. If my read is correct, the DOJ view is a very pro-disability approach to take and goes far beyond the gateway theory that has been predominating in the courts. It also will have a yuge impact on the software as a service industry and on Internet-based businesses.
  3. Even if a vending machine is not a place of public accommodation, the place of public accommodation hosting the vending machine is not off the hook.

Finally, I realize it is a Sunday and the reader may not particularly be interested in filling out a form today to vote this blog as an ABA 100 for this year. But if you have the time and you don’t mind, the deadline is today. The form can be found here.

5 Responses to Department of Justice’s Amicus Brief in Magee v. Coca Cola Refreshments and Brief’s Impact on Title III Web Site Accessibility Litigation

Hello, is there a link to the actual brief? You usually provide such information, but I cannot find it either in your blog or in DOJ’s ADA.gov page. Thank you for your help.

On August 3, 2017, Judge Weinstein of the Eastern District of New York in Andrews v. Blick Art Materials, LLC essentially adopted the Department of Justice amicus brief discussed in the main blog entry above saying that a place of public accommodation under 42 U.S.C. §12181(7) is not confined to a physical space. It is an interesting read and can be found at
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0ahUKEwi_v9Gwv8rVAhWd2YMKHVaXCYMQFgg5MAE&url=http%3A%2F%2Fwww.retaillaborandemploymentlaw.com%2Ffiles%2F2017%2F08%2FAndrews-vs.-Blick-Art-Materials-LLC.pdf&usg=AFQjCNG05t7NV2LGL-yErQYqL12gc4cZCQ .

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