In a recent blog entry, I discussed a 10th Circuit opinion that talked about just what is a service establishment. This blog entry talks about a similar issue, which is just what is a sales establishment? The case of the day essentially adopts the dissenting view of Judge Holmes in Levorsen, the case referenced above. As such, it makes you wonder whether there is not a split in the Circuits with respect to just what does it mean for a place of public accommodation to exist. I realize the issues are not exactly the same, since one involves sales establishments and the other involves service establishments. However, the applicable analysis is identical but with completely different outcomes. Therefore, one has to wonder whether the defendant in Levorsen have now increased its chances for an en banc rehearing and/or appeal to the U.S. Supreme Court.
Today’s case is Magee v. Coca-Cola Refreshments USA, Inc., a published Fifth Circuit decision. As is usual, my blog is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.
Coca-Cola’s glass-front vending machines are self-service, fully automated machines dispensing bottles and cans of Coca-Cola sodas, as well as juices, energy drinks, and waters. They have been around since 2000 and are equipped with many different features including: the ability to accept payment from smart phones and other near field communication devices; wireless Internet capabilities; credit and debit card processing; motion sensing technology; and onboard computer systems. Even so, the vending machines lack any meaningful accommodation for use by the blind. In particular, the machines use an alphanumeric keypad. Such a keypad does not contain a tactile indicator differentiating between letters and numbers, but yet the users have to identify and input selecting codes of the beverage they wish to purchase. Of course, a blind user (the plaintiff suffers from macular degeneration and is considered legally blind), can’t do that since the selecting codes are printed in place below each beverage inside the machine and are visible to the machine’s glass front. It is also possible that the vending machines could be made accessible to the blind by doing any of several different things including: retrofitting the machine with an audio interface system and a tactile alphanumeric keypad; developing a smart phone application capable of displaying a non-visual representation of the contents and corresponding prices for the vending machine; or imprinting a nonvisually displayed toll-free hotline that the visually impaired person to call for assistance in purchasing a beverage. The plaintiff encountered the vending machines at East Jefferson General Hospital in Metairie, Louisiana, and at a bus station in New Orleans, Louisiana. He has regularly used both of those places and reasonably expects to use those places in the future. The plaintiff’s filed suit against Coca-Cola Refreshments alleging that they were violating title III of the ADA by not having a sales establishment accessible to him. He did not sue the bus station or the hospital.
In rejecting plaintiff’s claim that a sales establishment was present, the court reasoned as follows:
- 42 U.S.C. § 12181(7)(E) states that a place of public accommodation includes, “a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment.”
- Two principles are critical for assessing whether the vending machine is a sales establishment. The first is noscitur a sociis, which means a word is known by the company it keeps. Second, ejusdem generis, which means when a general word or phrase follows a list of the specific, the general word or phrase will be interpreted to include only items of the same class as those listed.
- The relevant portion of the statute uses the term “sales establishment,” following a list of retailers occupying physical stores.
- The Third, Sixth, and Ninth Circuits have recognized that every term listed in 42 U.S.C. § 12181(7) is a physical place open to public access. That is, they are actual, physical places where goods or services are open to the public, and places where the public get those goods or services. The court does note a split among the Circuits on this point as the First, Second, and Seventh Circuits have interpreted the term, “public accommodation” to extend beyond physical places.
- Although the term “establishment,” could possibly be read to include a vending machine, a vending machine is not like any of the listed examples in the applicable statute.
- A look at various dictionaries reveals that an establishment would not include a vending machine. The dictionaries consistently talk about places of business or residence with furnishings and staff when it comes to establishments.
- The United States Supreme Court, in a Fair Labor Standards Act case, has recognized that the term “establishment,” is normally used in business and in government as meaning a distinct physical place of business.
- Legislative history also backs up the use of noscitur a sociis and ejusdem generis. In particular, a House Report said that although not expressly mentioned, bookstores, video stores, stationery stores, pet stores, computer stores, and other stores offering merchandise for sale or rent are included as retail sales establishments. Another House Report notes that the category including a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or retail establishment is only a representative sample and that other retail or wholesale establishments selling or renting items include such things as: a bookstore; videotape rental store; or pet store, all of which are physical places and actual stores.
- The Department of Justice has noted that the category sales or rental establishments includes many facilities other than those specifically listed such as: video stores; carpet showrooms; and athletic equipment stores. Again, all of which are actual stores.
- Holding otherwise leads to an absurd result, though the Fifth Circuit didn’t say it quite that way. For example, the Department of Justice has said that a building with five or more sales or retail establishments is a shopping center or mall. Accordingly, if the plaintiff’s theory is correct, that would mean that any building containing five vending machines would qualify as a shopping center or mall, which is clearly not the intent of the various drafters. That Department of Justice guidance also refers to counters and large windows and check out aisles as special features for sales or rental establishments, which are clearly not applicable to vending machines.
- All of this is not to say that vending machines are not subject to various requirements under the ADA by virtue of their being located in a hospital or a bus station as both of those places are undoubtedly places of public accommodation per 42 U.S.C. § 12181(7)(F) and 42 U.S.C. § 12181(7)(G).
- For the reasons stated by the court, it is curious why the bus station and the hospital were not sued instead of Coca-Cola Refreshments. If the vending machines are still in the hospital and the bus station, it would make sense for the plaintiff to immediately go after the hospital and the bus station.
- With respect to the hospital, since they take federal funds, the plaintiff will also have the option, assuming the vending machines are still there, of suing the hospital under § 504 of the Rehabilitation Act. It would also make sense to investigate whether the bus station takes federal funds. If the Rehabilitation Act is applicable, that opens up the possibility of damages, though that would involve meeting a high standard, in addition to attorneys fees and injunctive relief.
- One wonders why it was not argued that the vending machines were an establishment serving food or drink per 42 U.S.C. § 12181(7)(B), but even there, you would have to get around the “establishment,” language for the vending machines to come within coverage of that clause. For that, you might argue for adoption of the majority decision in Levorsen, which basically says the key is the adjective and not the noun. That is, an establishment is simply a place carrying out a service or in this case, a sale.
- The court also specifically references the split among the Circuits with respect to whether a place of public accommodation extends beyond physical spaces.
- As mentioned above, we now have two United States Court of Appeals cases discussing places of public accommodations reaching diametrically opposite conclusions, albeit discussing different categories. One wonders if that doesn’t set up a Circuit court split or at a minimum, as mentioned above, increase the chances of an en banc hearing in Levorsen.
- Common sense says to me that this would be a very difficult case to win on appeal, assuming the United States Supreme Court would take the case in the first place, since vending machines are involved and it involves a logical stretch from the statutory language. It is also worth noting that there was no dissent in Magee. That said, as mentioned above, this case does, to my mind, increases the possibility of a rehearing en banc in Levorsen or if that does not happen, an appeal to the United States Supreme Court on a Circuit court split theory.