Winegard v. Newsday LLC

556 F.Supp.3d 173

Jay WINEGARD, on behalf of himself and all others similarly situated, Plaintiff,

v.NEWSDAY LLC d/b/a Newsday, Defendant.

19-CV-04420(EK)(RER)

United States District Court, E.D. New York.

Signed August 16, 2021

Mitchell Segal, Law Office of Mitchell S. Segal P.C., Manhasset, NY, for Plaintiff.

Michelle E. Phillips, Joseph James DiPalma, Jackson Lewis, LLP, White Plains, NY, for Defendant.

MEMORANDUM & ORDER

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 , ––– U.S. ––––, 140 S. Ct. 122, 205 L.Ed.2d 41 (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 , 578 U.S. 330, 136 S. Ct. 1540, 1549, 194 L.Ed.2d 635 (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, 121 S.Ct. 1879, 149 L.Ed.2d 904 (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, 19 How. 82, 15 L.Ed. 554 (1856) (passenger steamships were "for the public accommodation"); Fanning v. Gregoire , 57 U.S. 524, 529, 16 How. 524, 14 L.Ed. 1043 (1853) (ferries); Proprietors of Charles River Bridge v. Proprietors of Warren Bridge , 36 U.S. 420, 554, 11 Pet. 420, 9 L.Ed. 773 (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, 73 N.E. 58 (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...