N.Y. Federal District Court Rejects ADA Claim Against Website OwnerOctober 18, 2021 | Shari Claire Lewis |
Many New York-based businesses with websites, as well as bloggers, vloggers, and other New Yorkers with an online presence, may justifiably feel a bit more immune to lawsuits under the Americans with Disabilities Act (ADA) given the recent decision by the U.S. District Court for the Eastern District of New York in Winegard v. Newsday LLC, No. 19-CV-04420(EK)(RER) (E.D.N.Y. Aug. 16, 2021), holding that a website does not constitute a “place of public accommodation” under the ADA.
That is because the court’s ruling in Winegard offers support for the view that the websites of businesses with no public-facing, physical retail operations are not included in the ADA’s definition of “public accommodations” and, therefore, that these businesses need not undergo the time and expense of making their websites ADA-compliant by, for example, providing closed captioning or other accommodations required by the ADA.
The case arose when Jay Winegard, a deaf individual residing in Queens, New York, filed an action on behalf of himself and others against Newsday, a Long Island-based newspaper that distributes its newspaper throughout New York but that operates no physical retail operations. Newsday’s print newspaper also is available on Newsday’s website, www.newsday.com, along with other web content.
Winegard alleged 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 that he was unable to view them because the videos lacked closed captioning. Winegard asserted that Newsday violated the ADA by denying deaf and hard-of-hearing individuals equal participation in watching videos on its website and failing to make reasonable modifications to the videos to afford access.
Newsday moved to dismiss for failure to state a claim, arguing among other things that its website was not a “place of public accommodation” within the meaning of the ADA.
Generally speaking, the ADA forbids discrimination against disabled individuals in major areas of public life. In particular, the ADA provides that, “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).
The ADA has an extensive definition of “public accommodation” in 42 U.S.C. § 12181(7). The definition states:
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.
With this as context, the Winegard court issued its ruling, granting Newsday’s motion to dismiss.
In its decision, the court examined the phrase “public accommodation,” pointing out its long history and that, 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. The court explained that although the scope of businesses covered by the phrase “public accommodation” has grown over time to include other types of public entertainment and service facilities, “it has not expanded to include every type of business operation.”
The court then focused on the ADA’s definition of “public accommodation.” It said that the definition contains 12 subparagraphs with what it found were 50 specific examples of public accommodations, at least 49 of which “indisputably” relate to physical places and the only other one – “travel service” – appearing to refer to travel agencies and to facilities that “commonly operate out of physical facilities.”
Accordingly, the court held that a “public accommodation” was “limited to actual, physical places.”
Turning to the ADA’s use of the phrase “place of” to modify the term “public accommodation,” the court found “no doubt” that Section 12182(a) was “not meant to reach the website of a business like Newsday.”
The court pointed out that dictionaries “overwhelmingly” define “place” to mean a physical location. It added that the U.S. Supreme Court, considering the phrase “place of public accommodation” in PGA Tour, Inc., 532 U.S. 661 (2001), in the context of the ADA to determine whether a ban on using golf carts discriminated against a golfer who could not walk the entire course, began its decision 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.” The Winegard court then concluded that the text of the ADA’s definition of “public accommodation” “clearly refers to physical places, and does not include stand-alone websites.”
A number of circuit courts around the country also have held that the definition of “public accommodation” in Section 12181(7) of the ADA is limited to physical places. See, e.g., Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021) (the 12 subparagraphs in Section 12181(7) list only “tangible, physical places” and no “intangible places or spaces”); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (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 (3d Cir. 1998) (“[W]e do not find the term ‘public accommodation’ or the terms in 42 U.S.C. § 12181(7) to refer to non-physical access or even to be ambiguous as to their meaning.”); Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006 (6th Cir. 1997) (“public accommodation is a physical place”).
The U.S. Court of Appeals for the Second Circuit has not squarely resolved this issue. However, the Second Circuit’s decision in Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28 (2d Cir. 1999), has been relied on by most district courts in the Second Circuit that have reached a result contrary to the result reached in Winegard. These district courts 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 Communications, Inc., No. 20-CV-1509 (S.D.N.Y. Mar. 30, 2021); Thorne v. Formula 1 Motorsports, Inc., No. 19-CV-1077 (S.D.N.Y. Dec. 19, 2019); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381 (E.D.N.Y. 2017).
Pallozzi involved a lawsuit against an insurance company that refused to issue a policy based on the plaintiffs’ mental health diagnoses. The Second Circuit accepted that an insurance office is a “public accommodation” (42 U.S.C. § 12181(7)(F)) and focused on whether an insurance policy is a “good” or “service” of an insurance office within the meaning of Section 12182(a) of the ADA. The circuit court concluded that the “full and equal enjoyment” of an insurer’s “goods and services” extends to the consumption of insurance policies and it held that Title III of the ADA (which refers to “place of public accommodation”) “does regulate the sale of insurance policies in insurance offices.”
The Winegard court did not see Pallozzi as a decision holding that websites are subject to the ADA. Rather, the Winegard court said that, at most, 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. Put differently, Winegard reasoned that goods and services are not covered by the ADA unless and until the “place of public accommodation” test is satisfied.
That condition was not satisfied in Winegard’s lawsuit against Newsday, the court concluded, because there was “no allegation that Newsday operates public-facing, physical places in which newspapers – or any other goods or services – are sold.”
Certainly, one district court decision that reaches a result different from the result reached by other district courts in the Second Circuit, and that interprets a Second Circuit decision differently than several other district courts in the circuit have done, is insufficient to establish a rule in the circuit limiting the ADA’s “place of public accommodation” test to entities that operate public-facing, physical places in addition to operating websites. However, given how well-reasoned and how well-considered Winegard is, it very well may lead other district courts – and perhaps even the Second Circuit itself – to reach the same conclusion it reached. Stay tuned.
Reprinted with permission from the October 18, 2021, issue of the New York Law Journal©, ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
- Shari Claire Lewis