Today’s blog entry goes back to the issue of whether an Internet only business website is subject to title III of the ADA. As we have discussed previously, such as here, there are several theoretical possibilities for handling such a claim, and they are: Internet is never a place of public accommodation; Internet is always a place of public accommodation; Internet site only has to be accessible if it is a gateway or has a nexus to a physical place; and Internet site has to be meaningfully accessible to persons with disabilities if it is of the type of business listed in 42 U.S.C. §12181(7). Several circuits have weighed in and there is a Circuit Court split. The Second Circuit has yet to weigh in. The blog entry of the week discusses a district court opinion within the Second Circuit from the S.D. of New York. The case is Mejia v, High Brew Coffee Inc. decided on September 30, 2024, here. As usual, the blog entry is divided into categories, and they are: facts; court’s reasoning that an Internet only business is not a place of public accommodation; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

 

Plaintiff is a legally blind individual who the parties agree is disabled within the meaning of the ADA. Defendant sells coffee solely through an online platform, highbrewcoffee.com (the “Website”). On April 10 and on August 10, 2022, Plaintiff attempted to purchase a twelve-pack of Double Espresso flavored coffee on the Website, but he was unsuccessful both times. Due to Plaintiff’s disability, he uses screen-reading software to navigate online. He was unable to use this software to make a purchase on the Website, however, because problems with the website’s coding rendered the screen-reader unusable. The complaint goes on to list several specific ways the plaintiff was not able to meaningfully access the website.

 

 

 

II

Court’s Reasoning That an Internet Only Business Is Not a Place of Public Accommodation

 

  1. A majority of circuit courts that have considered the issue- Third, Sixth, Ninth, and Eleventh [in the opinion itself, the court mentions the Seventh Circuit here but that can’t be right. It is possible that the Seventh Circuit itself is split and that happens in that circuit from time to time. That said, the cases cited by the court for this proposition do not include a Seventh Circuit case],- have found that a website constitutes a place of public accommodation only if it has a connection to a physical location (that is, a “brick-and-mortar,” store or establishment).
  2. The First and Seventh Circuits have adopted a minority position, that no “physical nexus,” is required for a private entity when engaged in commerce, in order to fall under the ADA’s scope of coverage.
  3. The Second Circuit has not squarely addressed the question of whether a website absent a connection to a physical location, constitutes a place of public accommodation.
  4. While the Second Circuit dealt with a related case, that case did not deal with the particular issue here. Instead in that case, the Second Circuit held that if a physical premises of a business constitutes a place of public accommodation, then goods and services sold from those premises are subject to the equal access mandate of the ADA.
  5. When looking at 42 U.S.C. §12181(7), all the items on the list are actual, physical places where goods or services are open to the public, in places where the public gets those services.
  6. Even the residual clause at the end of each list, leads to a similar conclusion. By listing 50 terms in §12181(7) that almost all refer to physical places, Congress indicated an intent to limit public accommodations to entities with physical locations. Arguably, the sole exception is travel services, which is included in the list of service establishments.
  7. Courts have disagreed on whether “travel service,” should be interpreted as limited to a physical location. Even so, read in context, “travel service,” appears to refer to travel agencies and to facilities, such as American Express counters, offering traveler’s checks, currency exchange services, and the like. Those businesses commonly operated out of physical facilities when the ADA was adopted, and still do even if it is in lesser numbers than before.
  8. Ejusdem generis also supports the view that general clauses in §12181(7), such as “any other service establishment,” should be confined to public-facing physical locations. That principle counsels that general clauses are limited by the specific clauses preceding them. Applying that principle, the category “any other service establishment,” embraces only entities similar in nature to those entities preceding it in §12181(7). Those entities include a laundromat, an office or an accountant employer, a bakery, and a travel service. All of those entities operate in physical places. Therefore, the principal indicate that the statute was only intended to encompass “service establishments,” tied to a physical location. Therefore, standalone websites cannot be considered a “service establishment,” within the meaning of §12181(7) because it lacks the necessary physical nexus.
  9. A standalone website should not be considered a “place of public accommodation,” because §12181(7) does not explicitly address businesses without a physical location, such as mail order merchandise and television shopping channels, despite numerous applicable business models in existence at the time the ADA was written. Accordingly, it cannot be inferred that Congress intended “places of public accommodation,” to include websites, which was a newly developed business model at the time, when the text of the statute excludes analogous business models by imposing a physical location requirement for an entity to be considered a “place of public accommodation.”
  10. In a footnote, the court notes that DOJ regulations, 28 C.F.R. §36.104, define a place of public accommodation as a “facility,” which is in turn defined in terms of is clearly being a physical place.
  11. In another footnote, the court says that the statutory canon, noscitur a sociis, also supports the conclusion that Congress intended “travel service,” to be limited to a physical place. This canon instructs that a word may be influenced by the words surrounding it. Since there are 49 other entities referenced that are clearly physical locations and travel services were also at least in part physical locations at the time, Congress must’ve intended to restrict its reference to “travel services,” to such services operating in physical locations.
  12. In another footnote, the court notes that at the time of the ADA business was done through mail order catalog and yet those catalogs were not included within the parameters of §12181(7).

 

III

Thoughts/Takeaways

 

  1. As the court notes, there is a Circuit Court split on this question. You can definitely expect that this issue will head to the United States Supreme Court. As I have mentioned several times previously, United States Supreme Court has been very good for people with disabilities outside of the employment context. So, not at all clear to me how this would get decided.
  2. I continued to be completely befuddled by how the Supreme Court case of South Dakota v. Wayfair, which we discussed here, never seems to come up in this kind of litigation, with rare exception. Certainly, a plaintiff, especially but not exclusively at the United States Supreme Court, would have to be out of their minds not to rely on South Dakota v. Wayfair in their arguments. As we discussed in that blog entry, there are literally 23 different times United States Supreme Court strongly suggests that a place of public accommodation need not be a physical place.
  3. The legislative history of the ADA makes clear that it was meant to evolve with technology. See, Tavarez v. Moo Organic Chocolates, LLC, 623 F. Supp. 3d 365 (S.D.N.Y. 2022), here. You can see that district courts in S.D. of NY are also split. So, look for Mejia to be appealed to the Second Circuit.
  4. One big point defense attorneys can make in arguing that internet only businesses are not places of public accommodations is that Congress did not amend the ADA to explicitly include the internet when it did the amendments.
  5. In nexus jurisdictions, what is a sufficient nexus can vary considerably from one jurisdiction to the other.