The blog entry for the week is getting posted a bit later than usual because my daughter came home for a short fall break and went back yesterday. Today’s blog entry is a published decision from the Court of Appeals of the State of California, Fourth Appellate District, in Martin v. Thi E-Commerce LLC, here. The case discusses the question of whether absent a gateway to a physical place, an Internet site is subject to title III of the ADA. The majority holds that it is not. The dissent argues that it is. The case gives an excellent rundown of the arguments for and against, and I thought it would be worth addressing. The facts are really straightforward. As is typical in these cases, you have blind individuals using screen readers claiming that the website is inaccessible. There are no physical stores involved whatsoever. All of the business occurs on the website. As usual, the blog entry is divided into categories and they are: majority opinion holding that absent a gateway, an entity must be a physical place to be subject to title III of the ADA (statutory and regulatory text); majority opinion holding that absent a gateway, an entity must be a physical place to be subject to Title III of the ADA (legislative history and public policy); dissenting opinion; and thoughts/takeaways. All the judges agreed that intentional discrimination was not involved in this case (the Unruh Act can apply by either intentional discrimination or by an ADA violation), and so I am not going to focus on that piece of it. Of course, the reader is free to focus on any or all of the categories. As far as the picture is concerned, the St. Louis Arch is often referred to as the gateway to the West. So, I thought that picture would be appropriate since the gateway concept always comes up in these cases.
Majority Opinion Holding That Absent A Gateway, An Entity Must Be A Physical Place To Be Subject To Title III Of The ADA (Statutory and Regulatory Text).
- The ADA, at 42 U.S.C. §12181(7), defines the phrase place of public accommodation in terms of a list of 12 categories, each of which has specific examples.
- The relevant federal regulation, 28 C.F.R. §36.104, defines a place of public accommodation and adds that a place of public accommodation is a “facility.” It goes on to define facility as, “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where a building, property, structure, or equipment is located.” A website is not in any of those categories, which isn’t surprising since the ADA was enacted in 1990 before the Internet took off.
- In the 30 years since, websites have become central to American life.
- Broad agreement exists that a website is subject to the ADA if it operates as a gateway or nexus to a physical location. However, the federal courts differ considerably on whether a standalone website is subject to the ADA.
- Several Circuits have held that title III of the ADA does not require a physical place. Those, circuits include: First Circuit (Carparts Distribution Center v. Automotive Wholesaler’s Association); Second Circuit (Pallozi v. Allstate Life Insurance Company); and the Seventh Circuit in dicta (Doe v. Mutual of Omaha Insurance Company). Those decisions relied on travel services and insurance company being contained within the list of categories with neither of those places necessarily being physical places at the time the ADA was enacted.
- The Circuit Courts holding that a physical place is required include: Sixth Circuit (Parker v. Metropolitan Life Insurance Company); Ninth Circuit (Weyer v. 20th Century Fox Film Corporation); Fifth Circuit (Magee v. Coca-Cola Refreshments USA, Inc., which we discussed here); and the Third Circuit (Ford v. Schering-Plough Corporation).
- Citing to a case we discussed here, Martinez v. Cot’n Wash, Inc., the court noted: 1) plain meaning of the term “place,” weighs against saying that a place of public accommodation is something other than a physical place; 2) dictionaries overwhelmingly define place as involving a physical location; 3) neither title III nor any implementing regulations provide a different definition of the word; 4) technology when the ADA was passed in 1990, suggests that Congress was unaware that the term carries a connotation of beyond a physical space and therefore could include certain sales and retail establishments from the scope of title III based upon a lack of connection to a physical space; 5) there were many businesses operating outside of brick-and-mortar premises in 1990, including some that have been in operation for decades, such as mail order catalogs. Nevertheless, Congress decided to use the term “place,” the plain meaning of which involved a physical space and can easily be understood as an intentional inclusion of businesses without any physical presence; 6) the United States Supreme Court recently noted that “place,” connotes a physical space with respect to a New Jersey law protecting against discrimination in places of public accommodation.
- Carparts is not persuasive because if the legislature meant to radically depart from the overall thrust of including solely physical locations, a legislature would not do so by burying examples in the list with the hope that judicial explorers would find it someday. Instead they would make it much more explicit. Furthermore, the travel agency is and often is a physical space open to the public.
- To the extent modern usage has evolved to allow the word “place,” to refer to a website, it would be strained to say that that is what Congress knew when the law was enacted in 1990.
Majority Opinion Holding That Absent A Gateway, An Entity Must Be A Physical Place To Be Subject To Title III Of The ADA (Legislative History and Public Policy).
- The Internet did not exist at the time the ADA was passed. So, the legislators who voted on the ADA had no conception of the digital revolution coming.
- The line about the ADA evolving with technology is just one line buried in the committee report written at a time when the Internet revolution had not yet occurred.
- At the federal level, the history of the Internet is a hands-off treatment. That can be seen in the Telecommunications Act of 1996 and the Internet Tax Freedom Act of 1998.
- When Congress amended the ADA in 2008, it took no legislative action to clarify just what is a place of public accommodation.
- While the Department of Justice has said that the ADA applies to Internet sites, it has not come up with regulations despite filing numerous amicus briefs [and I note for that matter, even settling many cases].
- No later than 2010, Congress and DOJ both recognized the need to clarify whether and under what circumstances a website constitutes a place of public accommodation. They also agreed that such clarification should take a broad and inclusive approach. Yet they failed in the 12 years that followed to provide any such clarification through regulation or statute.
- The ADA just does not address Internet accessibility in the context of title III, though §508 of the Rehabilitation Act certainly does.
- The FCC has taken a similar, hands-off approach to regulating the Internet.
- Congress, across multiple administrations and both political parties, has maintained a consistent publicly stated policy of avoiding passing laws interfering with the free market based development of the Internet. Also, relevant regulatory agencies have either avoided regulating the Internet or have deliberately chosen not to act. Therefore, the only reasonable conclusion is that Congress intended for the ADA not to apply to websites.
- Subjecting standalone website to title III of the ADA would impose costs on businesses and society generally. The weighing of those costs and benefits is better left to legislature and regulatory entities rather than the judiciary.
Dissenting Opinion (Judge Delaney)
- Today, dictionaries are now realizing that the term “place,” can include something beyond a physical space.
- Just because a meaning of a statute may be more “natural,” or more commonly used, does not render that statute unambiguous.
- At least some of the types of businesses listed in 42 U.S.C. §12181(7) operated exclusively by telephone or by written correspondence at the time the ADA was enacted. Today, numerous businesses listed in those categories are quite capable of existing without operating in a physical space. So, their inclusion in the statute at a minimum leaves room to reasonably infer that Congress did not intend a physical limitation.
- Another indicator that Congress did not intend a physical limitation, is the open ended language at the end of each enumerated category that begins with, “or other….”
- While Congress chose to limit the categories of private entities to which title III of the ADA was applied, it expressly allowed for its application to types of entities not specifically listed so long as they fell within the scope of one of the enumerated categories.
- Regulations are not a definitive indicator of congressional intent. After all, it is not unusual for regulations to misinterpret or run counter to statutory language and congressional intent.
- A court must choose the construction of the statute that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute.
- The clear, sweeping, comprehensive purpose and intent of the ADA is furthered by an interpretation that does not limit the ADA’s application to brick-and-mortar public accommodations. In fact, it would be defeated by an interpretation that persons wishing to access goods and services of a public accommodation with a physical location open to the public are protected by the ADA while those attempting access identical goods and services from an identical public accommodation lacking a physical location open to the public are not.
- Applying the ADA only to public accommodation with a physical location is effectively a determination that Congress intended to freeze the legislation in time, applying it only to life as it existed when it was enacted. Such a course of thinking, is problematic and curtails the envisioned integration of people with disabilities into all aspects of everyday life.
- Congress made clear that technological advances would impact a public accommodation’s responsibilities. For example, while auxiliary aids and services was defined in the legislation, the definition was intended to provide examples only. To the extent technological advances rendered affordable or readily available auxiliary aids or services previously unaffordable or unavailable, Congress explained that the change would require covered entities to provide it.
- To conclude that Congress intended the legislation to evolve with technological and other advancements regarding the provision of auxiliary aids and services by public accommodations, but not with the same types of advancements regarding public accommodation themselves is unsound. Indeed, the ADA was intended to be future driven.
- Any statutory interpretation leading to absurd consequences must be avoided.
- Post enactment occurrences noted in the majority opinion have little if any value. The Supreme Court has said that the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.
- Expanding the ADA to require accessibility of websites would not work against innovation and a naturally competitive free market because it would further expand the market through additional consumers who have been so far effectively excluded from the ever-expanding aspect of the economic and social mainstream of American life.
- DOJ did issue propose regulations dealing with Internet accessibility, though it did withdraw the regulations to study the matter further.
- Legislative silence is a poor beacon to follow when construing a statute
- Citing to South Dakota v. Wayfair, the dissent noted that the Internet’s prevalence and power have changed the dynamics of the national economy.
- E-commerce is not the only way in which the Internet and other factors have revolutionized everyday life. The Internet also provides one of the central means of information gathering and communication in our culture. The Internet is now practically unavoidable in daily life. While some physical locations ultimately reopened after the pandemic, many others remain as online only offerings. Adding to those offerings, is an ever-growing presence of exclusively Internet-based goods and services and industries such as education, health, professional services, transportation, travel services, and entertainment.
- There can be no denying that in today’s world that the Internet is central to every aspect of the economic and social mainstream of American life. While Congress could not have understood that at the time of the ADA, it did understand that the world around us would change and believed that the nondiscrimination mandate contained in the ADA should be broad and flexible enough to keep pace.
- Interpreting the ADA to have no physical location restriction and applying it to any qualifying public accommodation irrespective of its chosen method to transact with customers and clients, is the only interpretation of the legislation that promotes and effectuate the law’s purpose and avoids (citing to a case that we discussed here– Scribd), severely frustrating congressional intent that individuals with disabilities fully enjoy the goods, services, probative, and advantages available indiscriminately to other members of the public.
- I don’t know how long the process is for an opinion to become certified for publication. I can tell you that just within the last couple of months that there have been lots of developments with respect to Internet accessibility in the regulatory environment. For example, several federal agencies have said in guidances that they are serious about Internet accessibility for people with disabilities. Also, DOJ did issue propose regulations dealing with Internet accessibility for title II entities, which we discussed here.
- It is about time that someone cited South Dakota v. Wayfair in an Internet accessibility case. We predicted that possibility over five years ago, here. What I do find strange is that while the dissent cited the opinion, the opinion badly missed an opportunity to cite from the nearly two dozen instances in the opinion making clear that public accommodation is not limited to a physical space. The dissent should have availed itself of that opportunity.
- One of the strongest arguments against a standalone website not being subject to title III of the ADA is that Congress passed up a chance to add that in the 2009 amendments to the ADA.
- The majority opinion does note the trend is overwhelming that an Internet site acting as a gateway to a brick-and-mortar location is subject to title III of the ADA. The problem is that what is a gateway or nexus varies from jurisdiction to jurisdiction and from court to court.
- There is a Circuit Court split on the issue of whether standalone websites are subject to title III of the ADA, so it will have to be decided by the United States Supreme Court. Now that South Dakota v. Wayfair has been explicitly raised by the dissenting opinion, attorneys on the plaintiff side should take advantage of that and dive into the opinion to show that a place of public accommodation need not be a physical space. I suppose they could just cite my blog for their proposition:-)
- The dissenting opinion discussion of auxiliary aids and services specifically being subject to the evolution of technology is not something I have seen before, but it is something that plaintiff’s attorneys should add to their arguments.
- I would expect an appeal to the California Supreme Court. The majority and dissenting opinions are an excellent preview of the arguments that will also be made ultimately to the United States Supreme Court. It is only a matter of time before the United States Supreme Court gets a case like this. I am not going to predict what they are going to do. As I have mentioned before, plaintiff side attorneys would have to be out of their minds not to utilize in a big way South Dakota v. Wayfair in their arguments before the Supreme Court, especially since it now has been explicitly brought up in a dissenting opinion.
- The Supreme Court decision in Laufer, the oral argument we discussed here, will not necessarily affect the arguments made by the majority and dissenting opinions in this case, but it might.