National Federation of the blind v. ScribD

Why You don’t Want to be a Test Case and How to Stop Serial website Plaintiffs

June 25, 2018 by William Goren 4 Comments

I hope everyone is enjoying the summer. Here in the Atlanta area, it has gotten really hot, which is to be expected this time of year down here. I just recently got back from Savannah from training municipal judges throughout Georgia on some hot issues they face with respect to the ADA. They were a great audience, and I had a blast.

Turning to today’s blog entry, website accessibility is back in the news. In particular, just how successful can a company be in fending off website accessibility litigation. Also, we will discuss why website accessibility litigation is here to stay, and we will try to read some tea leaves as to how the Supreme Court will deal with the issue. Before proceeding further, my colleague, Richard Hunt, and also blogger has an excellent blog entry this week talking about how it when it comes to website accessibility, your best choice is to fix it rather than contest it. Do you really want to be the Supreme Court test case? That blog entry also mentions a recent case from the 11th Circuit, Haynes v. Hooters of America LLC, where the 11^th Circuit allowed a website accessibility case to proceed. As usual, the blog entry is divided into categories and they are: why you don’t want to be a test case; Haynes v. Hooters of America, LLC; and lessons learned from Haynes and takeaways. The reader is free to focus on any or all of the categories.

Why You Don’t Want to Be the Test Case: South Dakota v. Wayfair, Inc.

As most of you know by now, the Supreme Court on June 21, 2018, held that States could tax Internet only businesses consistent with the U.S. Constitution. Several statements from that decision strongly suggest that the Supreme Court would likely hold that businesses that are only on the web are places of accommodation under the ADA. Let’s explore those statements.

“The physical presence rule has been the target of criticism over many years from many quarters.” I have not done a law review survey of whether the few cases holding that the ADA title III provisions only applies to physical spaces have been the target of large-scale criticism. I have certainly criticized it in this blog. It would not surprise me if others have as well.
“And while Nexus rules are clearly necessary, the Court should focus on rules that are appropriate to the 21^st-century, not the 19^th [citation omitted]. Each year, the physical presence rule becomes further removed from economic reality…” As the Court notes, “it is an inescapable fact of modern commercial life that a substantial amount of business is transacted with no need for physical presence within the State in which business is conducted.”
Paraphrasing, a physical presence rule creates rather than resolves market distortions. Certainly, that is true in the case of website accessibility litigation. That is, a holding that website only businesses do not have to comply with the ADA distorts the market because businesses with a physical presence do have to comply with an elaborate set of architectural guidelines. Such a policy creates a subsidy for Internet only business.
“But the administrative costs of compliance, especially in the modern economy with its Internet technology, are largely unrelated to whether companies happen to have a physical presence in the State… In other words, …, A small company with diverse physical presence might be equally or more burdened by compliance costs than a large remote seller.” This is especially so when it come to the ADA Architectural Guidelines for physical spaces, which can be quite involved.
“And it is certainly not the purpose of the commerce clause to permit the judiciary to create market distortions.” Certainly, a get out of jail free card to website only businesses creates market distortions.
Paraphrasing, worse still, [a physical presence]… rule produces an incentive to avoid physical presence in multiple States. That means the market might currently lack storefronts, distribution points, and employment centers that otherwise would be efficient or desirable. True, the Supreme Court was referencing tax collection here, but the incentive is exactly the same when it comes to website accessibility.
“… When the day-to-day functions of marketing and distribution in the modern economy are considered, it is all the more evident that the physical presence rule is artificial in its entirety.” Also, paraphrasing here, modern e-commerce does not align analytically with a strict physical presence test. Again, the Supreme Court was referring to tax collection here, but the same analysis applies to website accessibility.
“But it is not clear why a single employee or a single warehouse creates a substantial nexus while physical aspects of pervasive modern technology should not. For example, a company with the website accessible in South Dakota may be said to have a physical presence in the State via the customer’s computers. A website may leave cookies saved to the customers hard drives, or customers may download the company’s app onto their phones.” The impact of this paragraph on whether website only businesses must be accessible to persons with disability can’t be overstated. This particular paragraph strongly suggests that a customer when accessing a business on the web is actually in that place.
“The dramatic technological and social changes of our increasingly interconnected economy means that buyers are closer to most major retailers than ever before-regardless of how close or far the nearest storefront.” Absent websites being accessible, this would not apply to persons with disabilities.
A business may be present in the State in a meaningful way without that present being physical in the traditional sense of the term. A virtual showroom can show far more inventory, in far more detail and with greater opportunities for consumer and seller interaction than might be possible for local stores.” Further, “this Court should not maintain a rule that ignores the substantial virtual connection to the State.” Another indication that the Supreme Court recognizes that a person accessing an Internet only business is really in fact accessing that place in a way that may even be superior to being in the store itself.
“Yet the physical presence rule undermines that necessary confidence by giving some online retailers and arbitrary advantage over their competitors….” That is, as mentioned above, website only businesses would not have to worry about accessibility for persons with disabilities but physical stores do.
“Further, the real world implementation of commerce clause doctrines now makes it manifest that the physical presence rule… Must give way to the far-reaching systemic and structural changes in the economy and many other societal dimensions caused by the cyber age.”.
89% of the American public has Internet access.
“The Internet’s prevalence and power have changed the dynamics of the national economy.” Why should people with disabilities be excluded from that?
“Last year, e-commerce grew up four times the rate of traditional retail, and it shows no signs of any slower pace.”

In short, there is much language in this decision that plaintiffs can use to counter defense arguments that websites do not have to be accessible to persons with disability.

Haynes v. Hooters of America, LLC

On June 19, 2018, the 11^th Circuit in a published decision dealt with the issue of whether a company sued once before for website inaccessibility can fight off a nearly identical lawsuit with someone else on the grounds that they previously settled a nearly identical lawsuit. The 11^th Circuit said a company can’t do it that way. That is, the company had to fight the second lawsuit. In its reasoning, the 11^th Circuit also gives a roadmap as to how a company can fend off numerous website accessibility lawsuits. Let’s look at the reasoning of the court first.

While the prior settlement agreement is in effect, the only person who can enforce any rights under it, is the plaintiff in that case. Once that agreement expires, no one has any rights under it. That is, plaintiff was not a party to the prior settlement agreement. Therefore, if Hooters does not remediate its website in accordance with that settlement agreement, the plaintiff has no way of enforcing the remediation plan.
Nothing in that prior settlement agreement requires Hooters, either before or after it expires, to continuously update and maintain its website to ensure it remains accessible to the blind. Further, because the parties in the prior case voluntarily dismissed the case and the District Court did not retain jurisdiction to enforce the settlement agreement, the court could not order Hooters to abide by it.
While Hooters may be in the process of updating the accessibility of its website, nothing in the record demonstrates that Hooters has successfully done so.
Plaintiff requested an injunction against Hooters if it does not bring its website into compliance with the ADA. Plaintiff also requested in his complaint that the District Court direct Hooters to continually update and maintain its website to ensure that it remain fully accessible.

III

Lessons Learned from Haynes and Takeaways

Web content accessibility guidelines 2.0, which has now been amended to 2.1, continues to be the gold standard for accessibility of websites. Keep in mind, the ADA requires meaningful access. Accordingly, flexibility exists as to what meaningful access is. Nevertheless, web content accessibility guidelines 2.0 et al remains the gold standard.
This case makes it in the interest of both a plaintiff and a defendant to put in a clause in when settling saying that the defendant will continuously update and maintain its website to remain accessible to persons with disabilities. It also might make a great deal of sense to go with a consent decree rather than a settlement so that the court can retain continuing jurisdiction.
Once you enter into any kind of settlement agreement, get cracking on it.
Reading tea leaves with respect to what the United States Supreme Court will do is always dangerous business. However, the South Dakota v. Wayfair decision sends a pretty clear message that this Supreme Court recognizes how the universe has changed with technology, and that it may be a thin reed indeed to say that the ADA only applies to a physical space. Also, the Supreme Court has been very favorable to people with disabilities outside of the employment context.
As my colleague Richard Hunt points out in his last blog entry, credit unions have had some success in dismissing cases based on standing saying that the person who could not access its website could not possibly be a member and therefore, a credit union had no obligation to that person. That may work, but it won’t work once a person with a disability eligible for membership in that credit union runs into trouble with accessing its website.
The language in the Supreme Court opinion discussed in this blog entry combined with the Department of Justice Amicus brief in the case we discussed here, strongly suggests that the courts now have license to move to the ScribD line of cases when deciding whether an Internet site is a place of public accommodation. That is, if the Internet site engaged in any one of the categories laid out in 42 U.S.C. §12181(7) then it is a place of public accommodation and subject to the ADA. Wayfair’s gateway language is so broad that one wonders whether the gateway theory would not just fall by the wayside in favor of whether one of the categories of a place of public accommodation is involved.

To Buy or Not: The Amicus Brief in Robles and Winn-Dixie

April 4, 2018 by William Goren 3 Comments

Hope everyone had or is having a happy holiday. Also, baseball season is underway. The Chicago White Sox are up-and-coming, but their time may not be yet. The Chicago Cubs going into the season are one of the top three to go to the World Series. The Atlanta Braves are not going to be so good. Good luck to your team. Also, if you have Villanova to win it all, congrats! What a great team and a great start to the year for the City of Philadelphia!

Today’s blog entry is analyzing an Amicus brief filed by numerous folks with respect to the decision in Robles, discussed here, and Winn-Dixie, discussed here, where the lower courts disposed of the matter favorably to the plaintiff with respect to accessibility of websites. The Amicus brief was filed by numerous trade associations, including: Restaurant Law Center; American Bankers Association; American Hotel and Lodging Association; American Resort Developers Association; Asian American Hotel Owners Association; Chamber of Commerce of the United States; International Council of Shopping Centers; National Association of Convenience Stores; National Association of Realtors; National Association of Theater Owners; National Federation of Independent Businesses; National Multifamily Housing Council; and the National Retail Federation. The brief I am analyzing is the one filed in the Winn-Dixie case where the lower court said that WCAG 2.0 was the accessibility standard that had to be met. Virtually an identical brief was filed in Robles.

I thought it would be fun to highlight the arguments and then next to the argument explain whether I buy it or not. So, the categories of argument and conclusions are different than our usual ones.

Argument

If the court affirmed the lower court’s decision at issue on this appeal the members of the various trade associations will be forced to do the impossible and try to comply with nonexistent, undefined, and potentially ever-changing standards of website accessibility.
I’m buying sort of: I agree that complying with the lower court’s decision means complying with undefined, and potentially ever-changing standards of website accessibility. While I agree that the standards are undefined and potentially ever-changing, I don’t agree that standards are nonexistent. That is, in this particular case, the lower court went with Web Content Accessibility Guidelines 2.0. Also, when it comes to title III accessibility, the standard is meaningful access, a standard that does exist.
Businesses are now subject to repeated lawsuits concerning their related noncompliance with nonstatutory, nonregulatory, nonbinding accessibility standards.
I’m buying. Meaningful access comes from the common law and there are no regulations dealing with website accessibility.
The District Court’s decision is inconsistent with the actual language of title III and its implementing regulations, which limits the term “place of public accommodation,” to physical establishments.
I’m not buying. As we have discussed numerous times in our blog, such as here, whether a physical establishment is necessary for it to be considered a place of public accommodation under title III is very much open to interpretation for the reasons discussed in those blog entries. Also, the ADA itself makes clear that it is supposed to evolve with technology.
Businesses can try in good faith to modify the websites to allow access to persons with disabilities, but the lack of definite regulations and agency guidance means there is no safe haven for compliance. Such uncertainty not only violates basic principles of administrative law, but also contravenes fundamental notions of due process as no definitive guidance instructs businesses how to operate ADA compliant websites.
I’m not buying: Lawyers love certainty, but there is rarely a true safe haven. With respect to it violating administrative law, I don’t see how. True, regulations are proposed, go through a period of commenting, and then are issued in final form. Here regulations were proposed, but then dropped. If the lack of regulations is a problem and the regulations should not have been dropped under the law, why isn’t a writ of mandamus being sought to compel the federal government to issue the regulations it started (more on that later). With respect to due process, this isn’t a criminal situation. The case law is clear that what is required is meaningful access. So, everybody knows exactly what standard needs to be satisfied to comply with the ADA even if there are dozens of different ways to satisfy that standard. If persons with disabilities are involved in the website design process, it should be fairly obvious as to whether the website is meaningfully accessible to persons with disabilities. I do want to add that when it comes to website accessibility, be sure to assess it for voice dictation, screen reader compliance, and accessibility for the deaf/Deaf/hard of hearing.
While the statute does not define the term “place,” the term is best read as referring to, “a physical environment,” according to Merriam-Webster.com
Not buying: “place,” can have different meanings. I went online to the same dictionary cited in the brief, Merriam-Webster.com. It is true that #1a talks about “a physical environment.” However, #1b refers to a, “place” as meaning, “a way for admission or transit.” Using a public accommodation’s website is certainly a way for admission or transit to that particular public accommodation.
Place equates with physical facilities in 42 U.S.C. §12181(7). Further, had Congress intended title III to apply to all businesses offering goods and services to the public, it would not have limited the defined list of public accommodations to only those offered at a place
Not buying: As many decisions have mentioned, travel services are listed as one of the places of public accommodations, and they have never required a person to access a physical facility in order to use those services.
28 C.F.R. §36.104 defines a place of public accommodation as a facility. Further, facility refers to all or any portion of building, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walk, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.
I’m not buying necessarily: The reference to this particular Code of Federal Regulations is on the surface appealing. However, it ignores 28 C.F.R. §36.102(b), which makes clear that the requirements for places of public accommodations to comply with the ADA extend beyond the matter of simple physical places.
Websites are not located in any particular physical place or facility, and therefore, are not places of public accommodation under title III. Although a chat room or other online form might be referred to metaphorically as a location or place, a physical presence is necessary to constitute a place.
I’m not buying: As we have discussed numerous times before, this very much depends upon the jurisdiction you are in. It certainly is not a slam dunk that a physical place is necessary in order to be covered by title III of the ADA. Further, as we have discussed earlier, the term “place,” is subject to different definitions.
The Department of Justice at 28 C.F.R. §36, Appendix A, has taken the position that title III covers access to websites of public accommodations. Such informal statements are not entitled to the force and effect of law. Regardless, DOJ has been inconsistent in its own position and has admitted that there is uncertainty regarding the applicability of the ADA to websites.
I’m not buying and I’m buying: It is true that the Department of Justice has taken the position that title III covers access to websites of public accommodations. They also in an Amicus brief took that position as well and we discussed that Amicus brief here. Whether the Appendix and the Amicus brief are entitled to deference is very much an open question. See this blog entry for example. Finally, saying that there is uncertainty regarding the applicability of the ADA to websites does nothing more than acknowledge the reality of the current state of the case law.
While Congress may amend the ADA to define a website as a place of public accommodation, it has not yet done so.
I’m buying: This is the strongest argument against websites being a place of public accommodations. Congress did have the opportunity to amend the ADA when it did the amendments to the ADA that ultimately passed. Congress in passing the amendments, did not eliminate the word “place,” from title III of the ADA nor did they redo the definition so that it was clear that physical facilities did not generally have to be involved. Under our system of government, it is up to Congress to make the laws and here they passed up a chance to redefine things. On the other hand, courts have said that just because Congress doesn’t do something, that doesn’t mean that congressional intent can be inferred from that nonaction. Finally, travel services, as mentioned above, does appear in the list of public accommodations.
Courts analyzing whether websites are subject to title III of the ADA break down into two different approaches: spirit of the law and Nexus.
I’m not buying: I don’t like the names of the categories. I would prefer “focus on public accommodations,” and “gateway.” Also, there are two other categories as well, and they are: physical places only, and an outlier, which we discussed in the Robles blog entry, that a person has to be able to go into the store itself even if the website is a gateway before they can bring a title III suit.
Spirit of the law cases ask whether businesses offer goods or services to the public via any platform and are focused on achieving a particular result, rather than effectuating the clear text of the ADA.
I’m not buying: Again, I don’t like the term “spirit of the law.” I would prefer, “focus on public accommodation.” What this line of cases does is focus on whether a public accommodation is involved i.e. it asks if one of the categories in 42 U.S.C. 12181(7) are in play. If they are, then the website must be meaningfully accessible to persons with disabilities. I also disagree that the cases are focused on results any more than any other decision by any other judge. If you are a judicial realist, you would argue that every decision of a judge is focused on results. I get judicial realism on some level, studied it in college, but as a lawyer that is difficult to square with what you do as a lawyer in the first place or why you continue in the business. If law is so arbitrary, then one has to question the credibility of the whole process.
Under the nexus approach, a business violates title III only when it impedes a disabled individual’s full and equal enjoyment of the goods and services offered at that business physical establishment.
I’m not buying: As mentioned above, I prefer gateway rather than nexus. Gateway is easier to understand and less legalistic. This line of cases is looking to see if there is a connection between the website and what is offered in the stores. If there is, then title III applies. Further, the Amicus brief confuses the categories by referring to the outlier case that says you actually have to be in the store physically in addition to accessing the website in order for the gateway theory to apply. It doesn’t work that way. They are two different theories.
The same defendant may get different results depending upon the jurisdiction the case is litigated in. For example, Netflix had that happen to them in California and in Massachusetts.
I’m buying: This is absolutely true. However, why not have the defendant engage in preventive law so that the problem doesn’t occur. Also, if a lack of regulations is a problem, why not, as mentioned above, seek a writ of mandamus compelling regulation to be issued or bring political pressure so that the regulations get done.
Existing regulations currently contain no provision governing the accessibility of websites or online content.
I’m buying: As mentioned in the brief, in 2010, a notice of proposed rulemaking was issued, but the Trump administration put it all on the inactive list.
Given that no regulations currently impose clearly defined obligations regarding website accessibility, businesses are simply not on notice as to what title III may require of them.
I’m not buying: The case law is clear that what is required is meaningful access. Instead of looking at this as a problem, businesses can look at it as an opportunity. That is, the lack of regulations give businesses all kinds of possibilities to get to meaningful access without being put in the straitjacket of regulations. So, the standard is clear. How you get there is another matter. Since the standard is clear, I’m not buying the due process argument. Again, this is not a criminal situation, which to my mind makes all the difference in the world with respect to the due process concerns.
Web Content Accessibility Guidelines are a set of non-mandatory accessibility guideline developed by the web accessibility initiative, a subgroup of the World Wide Web consortium. It is a private-sector international community member organization where full-time staff and the public work together to develop web standards.
I’m buying: Even so, why not use it as a matter of preventive law?
While the DOJ has referenced the WCAG guidelines, that did not turn them into mandatory rules nor into any rules entitled to deference. Further, WCAG have different categories of compliance, and so, a business would not know what level of compliance to meet. §508 also has its own regulations. So, which one does a business use?
I’m buying but: I can’t argue with this. However, it doesn’t take away from the fact that the standard required by the ADA is meaningful access and that WCAG or §508 can be used as a preventive law matter. As mentioned above, the lack of regulations can be an opportunity for businesses rather than an obstacle. It all depends how you look at it.
The never ending uncertainty underscores the importance of creating website accessibility guidelines through proper notice and comment rulemaking and not through litigation.
I’m buying: But whose fault is that? That is, as court decisions have mentioned the lack of action by the federal government should not give businesses a get out of jail free card to ignore the accessibility of their businesses to persons with disabilities. Again, the standard is there; it’s just how you get there depends.

Conclusions:

When I stepped away from drafting this blog entry, I got to thinking why a writ of mandamus wouldn’t work. That is, some kind of motion to compel the Department of Justice to formulate regulations. The reason it won’t work is because you can’t have it both ways. If the ADA does not apply to websites, then the Department of Justice does not have any reason to issue regulations in the first place since it is out of their jurisdiction. However, if the ADA does apply to websites, then the DOJ is mandated to issue regulations carrying out the ADA and they have not done so in this case. You can’t have it both ways. That is, you can’t argue that the ADA does not apply to the web but DOJ has to issue regulations. How can that be if the ADA doesn’t apply to website to begin with?
Meaningful access is the standard. So, businesses and their coders should take this as an opportunity to work with the disability community (make sure you include voice dictation and screen reader users as well as the deaf/hard of hearing), to come up with creative ways to make sure that their websites are accessible to people with disabilities.
The strongest argument industry has against website accessibility is that Congress passed up a chance when it amended the ADA to include the Internet and places of public accommodations. At the time of the amendments, the Internet was around for sure. That said, as courts have said, there can be lots of reasons why Congress doesn’t act. Also, the ADA was specifically intended to evolve with technology.
It isn’t at all clear that title III of the ADA is entirely focused on facilities as the brief claims.
What is a “place,” is the $64,000 question. Even the same dictionary has different definitions that can take you to very different places (pun intended). As mentioned above, DOJ has suggested that there are situations where a place of public accommodation may not be a physical facility. See this blog entry.
I prefer to think of the possible approaches to website accessibility and the courts as being: physical place only; focus on place of public accommodation; gateway; and you have to be able to show that you have been physically in the store before you can go after Internet inaccessibility (the last one being a complete outlier). The trend has been the gateway approach, but that may be changing to a focus on public accommodation approach.
WCAG and even §508 standards are a good place to look at for building a preventive law system for your website.
Interesting that the brief never mentioned the primary jurisdiction doctrine. That may be because in light of the Trump administration withdrawing the regulations, I don’t see how such an argument could be credible. See this blog entry.

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

July 30, 2017 by William Goren 5 Comments

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.

Highlights

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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.

Takeaways:

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.
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.
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.