Opinion · District Court, E.D. New York
Winegard v. Newsday LLC
Winegard v. Newsday LLC, No. 1:19-cv-04420, UP10306632 (District Court, E.D. New York Aug. 16, 2021)
- Type
- Opinion
- Court
- District Court, E.D. New York
- Jurisdiction
- New York
- Date
- 2021-08-16
- Topic
- commercial
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------x Jay WINEGARD, on behalf of himself and all others similarly situated, MEMORANDUM & ORDER Plaintiff, 19-CV-04420(EK)(RER) -against- NEWSDAY LLC d/b/a NEWSDAY, Defendant. ------------------------------------x ERIC KOMITEE, United States District Judge: Title III of the Americans with Disabilities Act (“ADA”) prohibits discrimination against the disabled “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). This case presents the question of whether a website constitutes a “place of public accommodation” under the ADA. The Second Circuit has not squarely resolved that question. As discussed below, district courts in this Circuit have generally concluded that a website does qualify as such — at least when the site in question serves as an adjunct to a brick-and-mortar business. The majority of circuit courts, however, have held that websites are not places of public accommodation.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
Jay WINEGARD, on behalf of himself
and all others similarly situated,
MEMORANDUM & ORDER
Plaintiff, 19-CV-04420(EK)(RER)
-against-
NEWSDAY LLC d/b/a NEWSDAY,
Defendant.
------------------------------------x
ERIC KOMITEE, United States District Judge:
Title III of the Americans with Disabilities Act
(“ADA”) prohibits discrimination against the disabled “in the
full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public
accommodation.” 42 U.S.C. § 12182
(a). This case presents the
question of whether a website constitutes a “place of public
accommodation” under the ADA.
The Second Circuit has not squarely resolved that
question. As discussed below, district courts in this Circuit
have generally concluded that a website does qualify as such —
at least when the site in question serves as an adjunct to a
brick-and-mortar business. The majority of circuit courts,
however, have held that websites are not places of public
accommodation. The Supreme Court recently declined to take up
the question. See Robles v. Domino’s Pizza, LLC, 913 F.3d 898
(9th Cir. 2019), cert. denied,140 S. Ct. 122
(2019).
Given that the Second Circuit has not spoken
definitively, I consider the statute’s text and its context, as
well as the history of the term “place of public accommodation.”
I also consider the closest Second Circuit authority — the case
of Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28
(2d Cir.
1999). Reading these sources, I am constrained to conclude that
the ADA excludes, by its plain language, the websites of
businesses with no public-facing, physical retail operations
from the definition of “public accommodations.” I therefore
grant Defendant’s motion to dismiss.
I. Background
The following facts are taken from the complaint and
assumed to be true for purposes of this motion. Jay Winegard is
a deaf individual residing in Queens, New York. He brings this
action on behalf of himself and others against Newsday, a local
newspaper company. Newsday distributes its newspaper throughout
New York, but it operates no physical retail operations. Its
print newspaper is also available on Newsday’s website,
www.newsday.com, along with other web-based content. Winegard
alleges that he visited Newsday’s website to watch various
videos, including programs entitled “Dumpling Craze Hits Long
Island: Feed Me TV” and “High and Mighty: Feed Me TV,” but was
unable to view them because the videos lacked closed captioning.
Plaintiff alleges that Newsday is violating the ADA by
denying deaf and hard-of-hearing individuals equal participation
in watching videos on its website, 42 U.S.C. § 12182
(b)(1)(A), and failing to make reasonable modifications to the videos to afford access,id.
§ 12182(b)(2)(A)(ii). These claims are
combined in Winegard’s First Cause of Action, and all stand or
fall on whether Newsday’s website is a “place of public
accommodation.” Id. § 12182(a). Winegard also brings claims
under the New York State and New York City human rights laws.
Defendant now moves to dismiss the complaint for lack
of standing and failure to state a claim.
II. Discussion
A. Standing
Newsday first contends that Plaintiff lacks standing
because the videos in question are available on YouTube, in
addition to Newsday’s website, and YouTube offers closed
captioning. Because he could have viewed the videos elsewhere,
Defendant argues, Plaintiff has suffered no “concrete” harm, and
therefore cannot allege an injury-in-fact sufficient to satisfy
the Article III standing requirements set out in Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1549
(2016).
This argument strikes the Court as analogous to
arguing, in the case of an alleged physical barrier, that a
disabled person suffers no injury sufficient to confer standing
so long as an accessible store down the block offers the same
product. Plaintiff cites no authority for the proposition that
a competitor’s accessibility deprives an otherwise aggrieved
plaintiff of standing, and this Court is aware of none. Cf.
Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62
(2d Cir. 2012)
(“Demonstrating that the defendant’s allegedly unlawful conduct
caused injury to the plaintiff . . . is thus generally an
essential component of Article III standing.” (emphasis added)).
Defendant’s motion to dismiss for lack of jurisdiction is
therefore denied, and I proceed to consider Defendant’s motion
to dismiss for failure to state a valid ADA claim.
B. Americans with Disabilities Act
The ADA is a “broad mandate” with a “sweeping purpose”
— it “forbids discrimination against disabled individuals in
major areas of public life, among them employment (Title I of
the Act), public services (Title II), and public accommodations
(Title III).” PGA Tour, Inc. v. Martin, 532 U.S. 661, 675
(2001). “As a remedial statute, the ADA must be broadly construed to effectuate its purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Noel v. N.Y.C. Taxi & Limousine Comm'n,687 F.3d 63, 68
(2d Cir. 2012)
(internal quotation marks omitted).
As noted above, the ADA’s prohibitions on
discrimination do not apply to all businesses. They apply to
places of public accommodation: “No individual shall be
discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or
operates a place of public accommodation.” 42 U.S.C § 12182(a)
(emphases added).
C. The Statute’s Text and History
1. “Public Accommodation”
The phrase “public accommodation” has a long history.
At common law, it referred to the particular subset of
businesses that had heightened duties of service — often
relating to lodging and transportation — because of the public
nature of their physical facilities. Vandewater v. Mills, 60 U.S. 82, 87
(1856) (passenger steamships were “for the public accommodation”); Fanning v. Gregoire,57 U.S. 524, 529
(1853) (ferries); Proprietors of Charles River Bridge v. Proprietors of Warren Bridge,36 U.S. 420, 554
(1837) (bridge).
Antidiscrimination statutes like the ADA have used the
term “place of public accommodation” for over a century. A New
York statute passed in 1895, for example, required that all
persons “be entitled to the full and equal accommodations,
advantages, facilities and privileges of inns, restaurants,
hotels, eating houses, bath houses, barber shops, theatres,
music halls, public conveyances on land and water, and all other
places of public accommodation or amusement.” Burks v. Bosso,
180 N.Y. 341, 342-43
(1905). The scope of businesses covered
has grown over time to include other types of public
entertainment and service facilities. But it has not expanded
to include every type of business operation.
The ADA’s definition of “public accommodation” is
consistent with this history. Section 301 of Title III of the
ADA, 42 U.S.C. § 12181
(7), contains that definition. In
considering whether it extends to intangible spaces, it is worth
setting out the definition in its entirety. It reads:
(7) Public accommodation. The following private entities
are considered public accommodations for purposes of
this subchapter, if the operations of such entities
affect commerce—
(A) an inn, hotel, motel, or other place of lodging,
except for an establishment located within a
building that contains not more than five rooms
for rent or hire and that is actually occupied by
the proprietor of such establishment as the
residence of such proprietor;
(B) a restaurant, bar, or other establishment serving
food or drink;
(C) a motion picture house, theater, concert hall,
stadium, or other place of exhibition or
entertainment;
(D) an auditorium, convention center, lecture hall,
or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware
store, shopping center, or other sales or rental
establishment;
(F) a laundromat, dry-cleaner, bank, barber shop,
beauty shop, travel service, shoe repair service,
funeral parlor, gas station, office of an
accountant or lawyer, pharmacy, insurance office,
professional office of a health care provider,
hospital, or other service establishment;
(G) a terminal, depot, or other station used for
specified public transportation;
(H) a museum, library, gallery, or other place of
public display or collection;
(I) a park, zoo, amusement park, or other place of
recreation;
(J) a nursery, elementary, secondary, undergraduate,
or postgraduate private school, or other place of
education;
(K) a day care center, senior citizen center,
homeless shelter, food bank, adoption agency, or
other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf
course, or other place of exercise or recreation.
The limitation emerging from this definition is
unmistakable. The definition contains twelve subparagraphs,
each followed by a general residual clause. Those subparagraphs
contain a total — by my count — of fifty specific examples. Of
those fifty examples, at least forty-nine indisputably relate to
physical places.1
This limitation was obviously deliberate. Congress
could easily have said “all businesses operating in interstate
commerce,” or referred to all “retail” or “service” operations.
But it chose instead to focus on physical places. At a more
specific level, if Congress had wanted to capture business
operations rather than places, it would have said “accounting
firm or law firm,” rather than using the clunkier phrase “office
of an accountant or lawyer,” for example; and it would have said
“health care practice” rather than “office of a health care
provider.” Apropos of this case, Congress could easily have
included “newspapers.” It did not. These choices demonstrate
Congress’s decision to apply the ADA’s anti-discrimination
provision to physical places rather than business operations
generally.
Some courts have written that the ADA’s framers could
not have anticipated the world wide web when they crafted the
1 Some courts have noted that “travel service” does not invariably refer
to a physical space, though there is no suggestion in the statute (or in
logic) that a travel service must be a virtual operation. Read in context,
“travel service” appears to refer to travel agencies and to facilities — such
as American Express counters — offering traveler’s cheques, currency-exchange
services and the like. These businesses commonly operated out of physical
facilities when the ADA was adopted, and still do (albeit in lesser numbers).
See, e.g., Liberty Travel: Our Story, Liberty Travel (Liberty opened its
first travel agent storefront in 1951, and continues to offer locations
throughout the United States), https://www.libertytravel.com/about (last
visited August 16, 2021).
“public accommodation” definition in 1990.2 This is not really
true.3 But even if it were, there were countless other types of
businesses operating outside of brick-and-mortar premises in
1990, including some that had been in operation for decades.
The Sears Roebuck catalog, for example, dated to 1888. See
History of the Sears Catalog, Sears Archives, (“In 1888, Richard
Sears first used a printed mailer to advertise watches and
jewelry . . . . The time was right for mail order
merchandise.”);4 see also An Inside Look at an Outdoor Icon, L.L.
2 See, e.g., Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200
(D. Mass. 2012) (observing that “web-based services did not exist when the ADA was passed in 1990 and, thus, could not have been explicitly included in the Act”); Nat'l Fed'n of the Blind v. Scribd Inc.,97 F. Supp. 3d 565, 575
(D. Vt. 2015) (“When [the ADA] was enacted Congress had no
conception of how the Internet would change global commerce.”).
3 By 1990, the internet had been in development for decades, with the
U.S. government leading the effort. And Congress knew well by 1990 that the
internet was coming. The Senate held hearings in 1989 “to explore the
potential of a national information superhighway.” Jeffery Kahn, Building
and Rescuing the Information Superhighway, Berkeley Lab ScienceBeat,
https://www2.lbl.gov/Science-Articles/Archive/information-superhighway.html
(last visited August 16, 2021); see also H.R. Sub. Comm. on Science Space and
Technology, 100th Congress, Rep. on High Performance Computing (1989). The
internet was then, of course, “still in its earliest incarnation.” John
Markoff, Ideas & Trends: Scientists Share Data at Speed of Light, N.Y. TIMES
(June 4, 1989), https://www.nytimes.com/1989/06/04/weekinreview/ideas-trends-
scientists-share-data-at-speed-of-light.html; see also id.
(“Senator Albert
Gore Jr., a Tennessee Democrat, has introduced a bill . . . that would create
a data ‘superhighway’ to link scientists . . . . The plan is to speed the
exchange of data by thousands of times.”). But retailers’ embrace of the
internet followed soon thereafter. See, e.g., Peter H. Lewis, Attention
Shoppers: Internet Is Open, N.Y. TIMES, Aug. 12, 1994,
https://www.nytimes.com/1994/08/12/business/attention-shoppers-internet-is-
open.html.
4 See http://www.searsarchives.com/catalogs/history.htm (last visited
August 16, 2021). “Reflecting modern trends in retailing, the [Sears]
company decided to stop producing the general catalog in 1993” — after the
adoption of the ADA. Id.
(noting that Sears continued offering “many [other]
specialty catalogs” after that point).
Bean (L.L.’s circulars evolved into a catalog by 1927);5 How
America Fell in and out of Love with J. Crew, CNN (J. Crew
“relaunched” as a catalog-only retailer in 1983);6 ‘8 CDs for a
Penny’ Company Files for Bankruptcy, NPR (Columbia House started
selling vinyl records via mail order in 1955);7 Don’t Judge the
Book-of-the-Month Club by Its Cover, Smithsonian Magazine (Book-
of-the-Month-Club began its subscription service in 1926);8
QVC.com (television shopping channel’s first broadcast was in
1986);9 History of As Seen on TV, As Seen on TV (first “As-Seen-
on-TV” infomercial aired in the mid-1950s).10 If Congress had
intended, it could easily have required catalogs to be printed
in Braille and TV shows to include closed captioning by
including such media within the scope of “public
accommodations.”11
5 https://www.llbean.com/llb/shop/516918?nav=ln-516917 (last visited
August 16, 2021).
6 https://www.cnn.com/style/article/j-crew-bankruptcy-fashion-
history/index.html (last visited August 16, 2021).
7 https://www.npr.org/sections/thetwo-way/2015/08/11/431547925/8-cds-
for-a-penny-company-files-for-bankruptcy (last visited August 16, 2021).
8 https://www.smithsonianmag.com/smart-news/dont-judge-book-month-club-
its-cover-180962382/ (last visited August 16, 2021).
9 https://corporate.qvc.com/ (last visited August 16, 2021).
10 https://www.asseenontvwebstore.com/category-s/127.htm (last visited
August 16, 2021).
11 The ADA was amended in 2008. See ADA Amendments Act of 2008, Pub. L. 110-325, 112
Stat. 3553 (2008). If websites had indeed been overlooked in
the 1990 bill simply because the internet was in its infancy, Congress could
Plaintiff argues that Newsday’s website falls within
four specific residual clauses in Section 12181: that it is a
“place[] of exhibition or entertainment”; a “place[] of
recreation”; a “sales or rental establishment”; and a “service
establishment[].” See Compl. ¶ 11 (referring to 42 U.S.C. § 12181
(7)(C), (I), (E), and (F)); see also Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion to Dismiss the Complaint (“Pl.’s Opp.”) at 1, ECF No. 16 (citing42 U.S.C. § 12181
(7)(E)). But these general clauses must be read in light of the specific lists they follow. The maxim ejusdem generis teaches that a residual clause’s meaning should be confined to the characteristics of the specific items listed before it. E.g., Hall St. Assocs. v. Mattel,552 U.S. 576, 586
(2008) (“[W]hen a statute sets out a series of specific items ending with a general term, that general term is confined to covering subjects comparable to the specifics it follows.”); see also Circuit City Stores, Inc. v. Adams,532 U.S. 105
, 114–15 (2001) (“[W]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the have amended the definition to clarify their inclusion with the later amendment. The fact that it did not — even after cases like Weyer,198 F.3d at 1114
and Ford, 145 F.3d at 614 were decided — cuts against the Plaintiff’s position. Monessen Sw. Ry. Co. v. Morgan,486 U.S. 330, 338
(1988) (“We have
recognized that Congress’ failure to disturb a consistent judicial
interpretation of a statute may provide some indication that Congress at
least acquiesces in, and apparently affirms, that interpretation.”).
preceding specific words.” (quoting 2A N. Singer, Sutherland on
Statutes and Statutory Construction § 47.17 (1991)).
Other circuits have applied this maxim (or the related
doctrine of noscitur a sociis) to hold that Section 12181(7) is
limited to physical places.12 E.g., Weyer v. Twentieth Century
Fox Film Corp., 198 F.3d 1104, 1114
(9th Cir. 2000) (“All the items on this list . . . have something in common. They are actual, physical places . . . .”); Ford v. Schering–Plough Corp.,145 F.3d 601, 614
(3d Cir. 1998) (“Pursuant to the doctrine of noscitur a sociis . . . we do not find the term ‘public accommodation’ or the terms in42 U.S.C. § 12181
(7) to refer to non-physical access or even to be ambiguous as to their meaning.”); see also Thorne v. Boston Mkt. Corp.,469 F. Supp. 3d 130
, 140 (S.D.N.Y. 2020) (“The subject of the residual clause
is ‘establishment,’ not the ‘food or drink’ that is being
‘served.’ Therefore, based on the text of the statute alone, a
gift card does not plausibly fall into the scope of the text’s
definition of a ‘public accommodation.’” (cleaned up)). All the
12 The maxim of noscitur a sociis provides that individual items
appearing in a list should be read to share common attributes. E.g., S.D.
Warren Co. v. Maine Bd. of Env’t Prot., 547 U.S. 370, 378
(2006); see also Beecham v. United States,511 U.S. 368, 371
(1994) (“That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well.”). When an enumerated item in a statutory list has multiple definitions, the word should be read according to the definition most similar to the nearby words’ meanings. See Dole v. United Steelworkers of Am.,494 U.S. 26, 36
(1990).
specific examples preceding Section 12181’s residual clauses
refer to brick-and-mortar locations. Applying the maxims of
ejusdem generis and noscitur a sociis, the residual clauses must
be read to reach only “public accommodation[s]” of the same
type.
Other courts reading the ADA definition’s text have
come to the same conclusion. For example, the Eleventh Circuit
in Gil v. Winn-Dixie Stores, Inc. looked only to the
“unambiguous and clear” plain language of Title III. 993 F.3d 1266
, 1276–77 (11th Cir. 2021). The twelve subparagraphs in Section 12181(7), it observed, list only “tangible, physical places” and no “intangible places or spaces.”Id.
A “public
accommodation” is thus “limited to actual, physical places.”
Id.
2. “Place Of”
All this is clear enough even before we get to the
statute’s use of the phrase “place of” to modify the term
“public accommodation.” Set together in sequence, the
collective phrasing leaves no doubt that Section 12182(a) was
not meant to reach the website of a business like Newsday.
Dictionaries overwhelmingly define “place” to mean a physical
location. Webster’s Third, for example, begins with the
following definitions: “1. open space in a city, space,
locality”; “1.a. a way for admission or transit”; “1.b. physical
environment”; “1.c. physical surroundings.” Webster’s Third New
International Dictionary 1727 (2002). Webster’s Second,
similarly, begins with: “An open space, or square, in a city or
town.” Webster’s Second New International Dictionary 1877
(1945).
Other courts looking to the definition of “place” have
come to similar understandings. In 2017, the Federal Circuit
addressed the phrase “regular and established place of business”
in 28 U.S.C. § 1400
, which governs venue in patent infringement cases. In re Cray, Inc.,871 F.3d 1355
(Fed. Cir. 2017). In
holding that “regular and established place of business”
requires a “physical place,” the court wrote:
The statute requires a “place,” i.e., “[a]
building or a part of a building set apart for
any purpose” or “quarters of any kind” from
which business is conducted. William Dwight
Whitney, The Century Dictionary, 732 (Benjamin
E. Smith, ed. 1911); see also Place, Black’s Law
Dictionary (1st ed. 1891) (defining place as a
“locality, limited by boundaries”). The statute
thus cannot be read to refer merely to a virtual
space or to electronic communications from one
person to another.
Id. at 1362
(emphasis added); see also, e.g., Magee v. Coca-Cola Refreshments USA, Inc.,833 F.3d 530, 534-35
(5th Cir. 2016)
(“Webster’s Third New International Dictionary defines . . .
‘place’ as ‘a building or locality used for a special purpose.’
. . . . Black's Law Dictionary defines ‘place of business’ as
‘[a] location at which one carries on a business.’”).
The United States Supreme Court has not reached the
precise ADA question presented here. But it has read the word
“place” to invoke a “physical location” in the exact phrase —
“place of public accommodation” — at issue in this case. Boy
Scouts of America v. Dale, 530 U.S. 640
(2000), involved the constitutionality of a state law: the Court considered whether New Jersey had violated the First Amendment’s right of expressive association in applying its public-accommodations law to a private membership group. Writing for the majority, Chief Justice Rehnquist noted that “[s]tate public accommodations laws were originally enacted to prevent discrimination in traditional places of public accommodation — like inns and trains.”Id. at 656
. While acknowledging that state-law definitions had expanded over the years, the majority nevertheless appeared taken aback that New Jersey’s Supreme Court had “applied its public accommodations law to a private entity without even attempting to tie the term ‘place’ to a physical location.”Id. at 657
. This observation, made after the adoption of the ADA in
1990, affirms that “places” of public accommodation are
presumptively physical locations, at least in federal court.
The Supreme Court went on to consider the phrase
“place of public accommodation” again a year later — this time
in the context of the ADA itself. In determining whether a ban
on using golf carts discriminated against a golfer who could not
walk the entire course, the Supreme Court began with a focus on
“place”: “The [PGA Tour] events occur on ‘golf course[s],’ a
type of place specifically identified by the Act as a public
accommodation.” PGA Tour, Inc., 532 U.S. at 677 (2001)
(emphasis added).
For these reasons, I conclude that the text of the
ADA’s definition of “public accommodation” clearly refers to
physical places, and does not include stand-alone websites.
D. Pallozzi
Most district court cases reaching the opposite
conclusion in this Circuit have done so in reliance on the
Second Circuit’s decision in Pallozzi v. Allstate Life Insurance
Co., 198 F.3d 28
(2d Cir. 1999). But Pallozzi does not compel
an outcome at odds with the plain-text reading above.
Pallozzi involved a lawsuit against an insurance
company that refused to issue a policy based on the plaintiffs’
mental-health diagnoses. The holding did not turn on the
definition of “place of public accommodation” in Section
12181(7). There was no dispute that an “insurance office”
qualifies as such, given that it is listed explicitly among the
specific examples in Section 12181(7)(F). 198 F.3d at 32 (“We
start with the fact that Title III specifies an ‘insurance
office’ as a ‘public accommodation.’”).13 Having accepted that
an insurance office is a “public accommodation,” the Court of
Appeals turned to the application of Section 12182(a) (“No
individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations
of any place of public accommodation . . . .”).
The Court of Appeals’ analysis thus focused on whether
an insurance policy is a “good” or “service” of an insurance
office. Unsurprisingly, the court concluded that the “full and
equal enjoyment” of an insurer’s “goods and services” extends to
the consumption of insurance policies. The panel held that
“Title III does regulate the sale of insurance policies in
insurance offices.” Id. at 33 (emphasis added). The physical
place, per Pallozzi, is a condition precedent; once that
condition is satisfied, the goods and services sold by that
place of public accommodation are swept within the ADA’s remit.
But those goods and services are not covered by the
ADA unless and until the “place of public accommodation” test is
satisfied. That condition is not satisfied here; there is no
13 42 U.S.C. § 12181
(7)(F) identifies the following as public
accommodations: “a laundromat, dry-cleaner, bank, barber shop, beauty shop,
travel service, shoe repair service, funeral parlor, gas station, office of
an accountant or lawyer, pharmacy, insurance office, professional office of a
health care provider, hospital, or other service establishment.” (Emphasis
added.)
allegation that Newsday operates public-facing, physical places
in which newspapers — or any other goods or services — are
sold.14
In that regard, Pallozzi’s holding (and its
application to this case) is consistent with the decisions of
other circuits considering the applicability of the ADA to
insurance policies. In Weyer v. Twentieth Century, for example,
the Ninth Circuit held that an employer-issued insurance policy
is not covered under the ADA. 198 F.3d at 1114. Under the
statute, according to Weyer, “some connection between the good
or service complained of and an actual physical place is
required.” Id. And that requirement could not be satisfied
when the insurance policy in question was not being sold by an
insurance office. Likewise, in Parker v. Metropolitan Life
Insurance Co., the Sixth Circuit held that “a public
accommodation is a physical place.” 121 F.3d 1006, 1010-11
(6th Cir. 1997). “A benefit plan offered by an employer” was not covered, therefore, because it was “not a good offered by a place of public accommodation.”Id.
(noting that a “public accommodation is a physical place”); see also Ford,145 F.3d at 14
Plaintiff argues that Newsday “has its own television and
video/internet studio in addition to its publishing and adverting production
facilities and offices.” Opp. at 5. But Plaintiff does not allege that
these facilities are open to Newsday’s customers, or that Newsday sells its
newspapers (or any other “goods” or “services”) at those locations.
612-13 (plaintiff who received disability benefits through her
employer was not “discriminated against in connection with a
public accommodation” because “she had no nexus to [the
insurance company’s] ‘insurance office’”).
At most, therefore, Pallozzi supports the conclusion
that websites are swept up in Title III when they offer the same
“goods and services” as the business’s brick-and-mortar
operation. Other courts have reached similar conclusions in
applying the ADA to the websites of businesses that do maintain
public-facing, physical storefronts (unlike Newsday). See,
e.g., Domino's Pizza, 913 F.3d at 905–06 (holding that the ADA
applies to Domino’s website and app, which “facilitate access to
the goods and services of a place of public accommodation —
Domino’s physical restaurants”). In Suvino v. Time Warner
Cable, Inc., No. 16-CV-7046, 2017 WL 3834777
, at *2 (S.D.N.Y.
Aug. 31, 2017), the court seems to have read Pallozzi just as I
do, on its way to holding that the ADA applied to Time Warner
Cable’s website because the “website functionalities . . . are
among the service features sold through the physical locations
and thus are an aspect of the goods and services offered by the
stores as public accommodations.”
To be sure, several district courts in this Circuit
have concluded that a website is a place of public accommodation
in its own right, whether or not it is attached to a brick-and-
mortar business. See, e.g., Winegard v. Crain Commc'ns, Inc.,
No. 20-CV-1509, 2021 WL 1198960
, at *2 (S.D.N.Y. Mar. 30, 2021); Thorne v. Formula 1 Motorsports, Inc., No. 19-CV-1077,2019 WL 6916098
, at *2 (S.D.N.Y. Dec. 19, 2019); Andrews v. Blick Art Materials, LLC,268 F. Supp. 3d 381, 386
(E.D.N.Y. 2017).15 But these cases rely heavily on Pallozzi. See, e.g., Winegard,2021 WL 1198960
, at *2 (“Following the Second Circuit’s decision in
Pallozzi[,] . . . many courts in this circuit, including this
one, have held that websites qualify as places of public
accommodation under the ADA.”).16 And as indicated above, I do
not read Pallozzi to dictate this conclusion.17
15 These observations in Thorne and Blick Art were dicta: both companies
did have physical facilities, so there was no need for these courts to decide
whether websites are “places of public accommodation” on a stand-alone basis.
See Thorne, 2019 WL 6916098
, at *1 (Formula 1 “advertises, markets, distributes, and sells boats and boating accessories at physical locations located in New York”); Blick Art,268 F. Supp. 3d at 386
(“Blick owns and
operates nationwide brick-and-mortar retail stores that sell art supplies.”).
16 The plaintiff in Winegard v. Crain Communications is the same
Winegard as in this case. By this Court’s count, Mr. Winegard had filed at
least forty-four ADA lawsuits in this district alone as of August 16, 2021.
17 These cases are actually expanding Pallozzi’s holding. And they do
so while offering no limiting principle for the expansion. Many of these
cases suggest that every website is a “place of public accommodation.” See,
e.g., Winegard, 2021 WL 1198960
, at *2 (“Following [Pallozzi], . . . many courts in this circuit, including this one, have held that websites qualify as places of public accommodation under the ADA.”); Thorne,2019 WL 6916098
,
at *2 (“Following Pallozzi, multiple district courts in this circuit have
held that websites qualify as places of public accommodation under the ADA.
. . . This Court concurs.”). Absent some limiting principle, this would
mean that every operator of a website — every blogger, vlogger, and the like
— must provide closed captioning and any other accommodation required by the
ADA.
Some authorities suggest a possible limitation on this rule — namely,
that the ADA applies only to websites that offer “goods and services.” See,
In addition to relying on Pallozzi, some of these
cases invoke policy arguments — as the Plaintiff does here.
See, e.g., Scribd Inc., 97 F. Supp. 3d at 575
(“Now that the Internet plays such a critical role in the personal and professional lives of Americans, excluding disabled persons from access . . . would defeat the purpose of this important civil rights legislation.”). But “considerations of policy divorced from the statute’s text and purpose could not override its meaning.” United States v. Tohono O’Odham Nation,131 S. Ct. 1723, 1731
(2011). And courts are perhaps especially ill- equipped to make policy in the ADA context. See, e.g., George v. Bay Area Rapid Transit,577 F.3d 1005
, 1012–13 (9th Cir. 2009) (expansive interpretations of ADA can be “problematic” because “courts are ill-equipped . . . to make what amount to engineering, architectural, and policy determinations as to whether a particular design feature is feasible and desirable”) (quoting Indep. Living Res. v. Oregon Arena Corp.,982 F. Supp. 698, 746
(D. Or. 1997)). e.g., Del-Orden v. Bonobos, Inc., No. 17-CV-2744,2017 WL 6547902
, at *5 (S.D.N.Y. Dec. 20, 2017) (stating that following Pallozzi, “four district courts in this Circuit . . . have each held . . . that Title III extends to online fora offering goods and services”) (emphasis added));75 Fed. Reg. 43460
-01 (July 6, 2010) (“The Department [of Justice] believes that [T]itle
III reaches the Web sites of entities that provide goods or services that
fall within the 12 categories of ‘public accommodations,’ as defined by the
statute and regulations.” (emphasis added)). But the textual basis for this
limitation in the ADA is unclear. Section 12182(a), for example, prohibits
discrimination not only in the enjoyment of goods and services, but also in
the enjoyment of the “facilities” and “privileges” of every place of public
accommodation.
Having dismissed the federal claims, I decline to
exercise supplemental jurisdiction over the state-law claims.
28 U.S.C. § 1367
(c); see also Motorola Credit Corp. v. Uzan,388 F.3d 39, 56
(2d Cir. 2004) (“[O]ur Court has held, as a general
proposition, that ‘if [all] federal claims are dismissed before
trial, . . . the state claims should be dismissed as well.’”
(emphasis omitted)).
III. Conclusion
The issue decided here is of course a matter of
significant importance for the deaf and hard-of-hearing
community, and also for almost any business that would develop
or maintain a website. In the end, this is an issue for
Congress to resolve, and Congress did so in 1990 when it
restricted the ADA’s application to the operation of physical
premises. For the foregoing reasons, the Defendant’s motion to
dismiss is granted. The Clerk of Court is respectfully directed
to enter judgment and close this case.
SO ORDERED.
/s Eric Komitee___________________
ERIC KOMITEE
United States District Judge
Dated: August 16, 2021
Brooklyn, New York