Wednesday, March 8, 2017

Blind Customers, Vending Machines, Class Actions and the Americans With Disabilities Act - Supreme Court Takes Notice

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Fifth Circuit Court of Appeals Holds in Magee v. Coca Cola That Soft Drink Vending Machines Are Not "Sales Establishments," and Thus Not "Places of Public Accommodation" Under Title III of ADA

In Magee v. Coca-Cola Refreshments USAInc., 2016 U.S. App. LEXIS 14978 (5th Cir. Aug. 15, 2016), the Fifth Circuit upheld the dismissal of a claim brought by a plaintiff seeking class action certification against the owner of Coca Cola self-service automated vending machines located in a bus depot and hospital. The plaintiff, who alleged he was blind, asserted that the vending machines violated ADA because they did not contain tactile buttons that would enable a blind patron to select his/her soft drink selection without aid from others.

Source of Controversy -
But Only One of Millions of Vending Machines of All Kinds
In explaining its central holding – that a self-service vending machine located within a place of public accommodation is not a “place” and therefore not a “sales establishment” (or “place of public accommodation”) under Title III – the Magee court adopted the reasoning and holding of several circuits, including that of the Third Circuit in Fordv. Schering-Plough Corp., 145 F. 3rd 601,(3rd Cir. 1998).

Third Circuit's Physical Access Test for Determining What Constitutes a Place of Public Accommodation, Announced in Ford v. Schering-Plough and Reaffirmed in Peoples v.  Discover Fin. Servs. Represents Majority View of U.S. Circuit Courts of Appeal

In Ford, the third Circuit Court of Appeals, which adjudicates federal district court decisions arising in Pennsylvania, new Jersey, Delaware and the Virgin Islands, held that “[t]he plain meaning of Title III is that a public accommodation is a place… In other words, a bookstore, for example, must make its facilities and sales operations accessible to individuals with disabilities, but is not required to stock Brailled or large print books.” This has become known as the "physical access" or "physical entry" rule.

In Peoples v. Discover Fin. Servs., Inc., 387 Fed.Appx. 179, 183 (3d Cir. 2010), the plaintiff asked the Court to reconsider Ford’s ruling that that a place of public accommodation must “a physical place open to public access.”  The Court refused to do so, noting it was controlled by the precedent established by Ford.  Subsequently, the U.S. Supreme denied Peoples' Petition for Certiorari.

Fifth Circuit’s 2016 Decision in Magee v. Coca-Cola Elects to Follow Precedent from Third, Sixth and Ninth Circuits and Holds that Self-Serviced Vending Machines are not Covered by Title III of ADA Because they are not “Sales Establishments”- The "Physical Access" or "Physical Entry" Rule Presently Constitutes the Majority View in the United States 

In Magee, the Fifth Circuit cited a wide variety of sources in support of its decision, including the Ford decision, and similar holdings previously made by the Sixth and Ninth Circuit Courts of Appeals, and in doing so rejected decisions rendered by the First, Second, and Seventh Circuits, which have interpreted the term “public accommodation” to extend beyond physical places. 

Will SCOTUS Hear Case After Denying Cert in Peoples Matter??
United States Supreme Court Indicates Possible Intention to Grant Certiorari in Magee v. Coca Cola

A Petition for Certiorari in the Magee case, filed in November 2016, is pending before the Supreme Court. As reported by Dan Fisher in Forbes (Supreme  Court asks government if a Coke machine must be ADA compliant), on February 27 the Supreme Court docketed a request to the Solicitor General for input on Magee’s pending Petition for Certiorari.

Justice Antonin Scalia

Justice Scalia’s Dissent in PGA Tour v. Martin Consistent with Physical Access Rule Established in Ford and Magee 

Justice Scalia’s dissent in PGA Tour v. Martin, 532 U.S. 661 (2001), which based upon my research is the most notable examination of the public accommodation issue made to date by the Supreme Court, may shed some insight into how the Scalia bloc will vote if the Magee appeal is in fact adjudicated by the Court.

In Martin, golfer Casey Martin, who had a disability that made it impossible for him to walk 18-holes of golf, prevailed before the Ninth Circuit on his claim that the PGA Tour’s refusal to permit him to use a golf cart while he attempted to qualify to play on the PGA Tour violated Title III.  The issue in the case was whether the plaintiff was during competition in “Q-School” tournaments a consumer of services offered to the public covered by ADA as opposed to being a provider of such services not covered thereby.  All conceded that golf course is the “type of place specifically identified by the Act as a public accommodation. §12181(7)(L).”

Holding that any member of the public with sufficient pedigree and resources could gain entry into a Q-School tournament, and that players in such events were at once patrons and providers, the Court held by 7-2 majority that the PGA Tour’s failure to permit Martin to use a golf cart violated Title III.  

Justice Scalia authored a dissent, which was joined by Justice Thomas.  The initial thrust of the dissent was that Title III was intended to protect only customers of public accommodations, and did not protect independent contractors such as Martin.  Thereafter, Justice Scalia addressed an issue not considered by the majority, to wit, whether Title III requires a provider of public accommodations to make modification to its inventory, services and/or privileges that would fundamentally alter the nature of same:

Having erroneously held that Title III applies to the “customers” of professional golf who consist of its practitioners, the Court then erroneously answers– or to be accurate simply ignores– a second question. The ADA requires covered businesses to make such reasonable modifications of “policies, practices, or procedures” as are necessary to “afford” goods, services, and privileges to individuals with disabilities; but it explicitly does not require “modifications [that] would fundamentally alter the nature” of the goods, services, and privileges. §12182(b)(2)(A)(ii). In other words, disabled individuals must be given access to the same goods, services, and privileges that others enjoy. The regulations state that Title III “does not require a public accommodation to alter its inventory to include accessible or special goods with accessibility features that are designed for, or facilitate use by, individuals with disabilities.” 28 CFR § 36.307 (2000); see also 28 CFR, ch. 1, pt. 36, App. B, p. 650 (2000). As one Court of Appeals has explained:

“The common sense of the statute is that the content of the goods or services offered by a place of public accommodation is not regulated. A camera store may not refuse to sell cameras to a disabled person, but it is not required to stock cameras specially designed for such persons. Had Congress purposed to impose so enormous a burden on the retail sector of the economy and so vast a supervisory responsibility on the federal courts, we think it would have made its intention clearer and would at least have imposed some standards. It is hardly a feasible judicial function to decide whether shoestores should sell single shoes to one-legged persons and if so at what price, or how many Braille books the Borders or Barnes and Noble bookstore chains should stock in each of their stores.” 

Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 560 (CA7 1999).

532 U.S. at __ 

Justice Scalia’s dissent – addressing an issue not addressed by the majority therein and not dealt with by the Court to date – is notable because it employs the very same rationale as utilized in Ford and its brethren, including Magee.  Indeed, the passage from the Seventh Circuit’s decision cites the very same book store/Braille example as employed in Ford and Magee. 

Just as in Ford, Magee and the majority of circuits to have decided the issue at hand, Justice Scalia found that the core requirement of Title III is that a place of public accommodation is just that – a place, and that, while the owner of such places must provide public access to their goods and services to all members of the public, Title III “does not require a public accommodation to alter its inventory to include accessible or special goods with accessibility features that are designed for, or facilitate use by, individuals with disabilities.”

NEWS UPDATE - March 23, 2017

Department of Justice Requires University Websites to be ADA Compliant

Click Here to read about the University of Cal Berkeley's march 2017 response.  

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