“In deciding that Coca–Cola’s vending machines in the instant case are not places of public accommodation, we acknowledge the limits of our holding. As the district court recognized, those vending machines may very well be subject to various requirements under the ADA by virtue of their being located in a hospital or a bus station, both of which are indisputably places of public accommodation. Here, however, Magee sued only Coca–Cola, an entity that does not own, lease (or lease to), or operate a place of public accommodation.”
Magee v. Coca-Cola Refreshments USA, Inc., 2016 WL 4363306, at *5 (5th Cir. Aug. 15, 2016).
Last month the Fifth Circuit confirmed a lower court decision finding that vending machines were not public accommodations and that by themselves they are not required to be accessible. The reasoning was very similar to that in the Netflix and Target cases from the Ninth Circuit. Like the Fifth Circuit, the Ninth Circuit found that a “public accommodation” means a physical store or similar facility where one buys goods or services. A website (in Netflix) or a vending machine (in Magee) might be a service of a public accommodation, in which case the public accommodation may be required to make it accessible. By itself, however, a website or vending machine is not a public accommodation. Standing alone it is not required to be accessible because it is simply not covered by the ADA.
The same kind of argument led to a similar result in Am. Ass’n of People with Disabilities v. Harris, 647 F.3d 1093 (11th Cir. 2011). The issue in Harris was whether voting machines were required to be accessible. The Court found they were not because the machines themselves were not public accommodations.
A completely different view appears in cases like Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12 (1st Cir. 1994) that focus less on the definition of public accommodation and more on the notion that goods and services should be accessible. These courts tend to view a distinction based on how goods or services may be purchased as irrational. Buying on the web or by phone shouldn’t be any different than buying in a physical store, at least with respect to accessibility. Carparts was a pre-internet case dealing with telephone transactions, but it resembles recent cases like Scribd that make the same argument.
The position of the Department of Justice lines up with that of the First Circuit in Carparts, even though its regulatory definitions of words like “facility” would seem to support McGee. At the end of the day though the day the courts will decide just what the ADA covers.
What we see in the contrast between McGee and Carparts is competing views of the ADA, with McGee representing courts who believe Congress applied the ADA only to public accommodations because it is focused on physical accessibility, while Carparts reflects the views of those courts and the Department of Justice who see the ADA as a broad mandate for accessibility regardless of its specific language. These views cannot be reconciled, and while the question of internet accessibility tends to dominate today’s discussion of the ADA, it is worthwhile to remember that cases about vending machines and telephone services will also help define the law in individual circuits – at least until the Supreme Court is finally given a chance to weigh in on the subject.
NOTE: for earlier blogs on this subject, click on the ADA Web Access category to the left.