By: Sean King
In Winegard v. Newsday, the United States District Court of the Eastern District of New York held that a website of a business that holds “no public-facing, [or] physical retail operation” does not constitute a “place of public accommodation” under the Americans with Disabilities Act of 1990 (“ADA”).[1] Jay Winegard is a deaf individual residing in Queens, New York.[2] Newsday, a Long Island-based newspaper company, distributes newspapers throughout New York, but does not manage any physical retail operation.[3] Instead, it has a website that allows users to subscribe for paper delivery and also makes available a web version of its print newspaper.[4] Winegard brought an action against Newsday, alleging he used the Newsday website and was unable to view certain videos because it did not contain closed captioning.[5] Winegard asserted Newsday violated the ADA by: (1) denying deaf and hard-of-hearing individuals equal participation in watching videos on its website and (2) failing to make reasonable modifications to the videos to afford these individuals access.[6] As a result, Newsday moved to dismiss the complaint for lack of standing and for failure to state a claim.[7]
The court rejected the lack of standing argument, finding Newsday’s argument unpersuasive.[8] Newsday had argued that the defendant could have gone to YouTube and watched the same video with closed captioning.[9] The court analogized Newsday’s argument to a situation where there is an alleged barrier, and a disabled person suffers no injury so long as there is an “accessible store down the block [that] offers the same product.”[10] This argument has never been accepted and thus, the court rejected the argument for lack of precedential value.[11]
However, the court accepted Newsday’s argument that Winegard failed to state a claim under the ADA. First, the court considered the statute’s text, the statute’s context, and the history of the term “place of public accommodation.” The ADA “forbids discrimination against disabled individuals in major areas of public life, among them . . . public accommodations.”[12] Looking at the definition of the term “public accommodation” in Section 301 of Title III of the ADA,[13] the court found that Congress was “obviously deliberate” in focusing on physical places when writing the statue.[14] In recognizing this restriction to physical places, the court utilized the maxim ejusdem generis, meaning that a “residual clause’s meaning should be confined to the characteristics of the specific items listed before it.” All the specific examples preceding Section 12181(7) residual clauses refer exclusively to brick-and-mortar locations.[15] As such, the court rejected Winegard’s argument that Newsday’s website falls within four of the residual clauses in section 12181,[16] because Newsday’s website is not a brick-and-mortar location.[17] Further supporting its conclusion, the court explained the use of the term “place of” before “accommodation” indicates a physical location; therefore, it is unlikely the phrase was intended to encompass a website.[18]
Second, the court considered the case of Pallozzi v. Allstate Life Insurance Co., which is the “closest Second Circuit authority.”[19] In Pallozzi, the Second Circuit held that, because an insurance policy is a “good” or “service” of an insurance office, it falls under Title III of the ADA.[20] The court’s focus in that case was whether an insurance policy was a “good” or “service,” not on the issue of whether there was a public accommodation.[21] The court reasoned that at most, “Palozzi supports the conclusion that websites are swept up in Title III when they offer the same ‘goods and services’ as the businesses brick and mortar operation.”[22] Because Newsday holds no brick-and-mortar operation, the holding of Palozzi is not at odds with the result of this case.[23] Further, the court rejected policy arguments of other courts, which argue that, because of the internet’s role in society, excluding disabled persons from access “would defeat the purpose of the important civil rights legislation.”[24] The court pointed out that “considerations of policy divorced from the statute’s text and purpose could not override its meaning.”[25] Lastly, the court reasoned “courts are perhaps ill-equipped to make policy in the ADA context.”[26]
Winegard v. Newsday is a big win for businesses whose online operations are not connected to physical retail operations. These businesses have further precedent in the Eastern District to prevail against ADA claims. Individuals similarly situated to Jay Winegard may have to rely on Congress to amend the current statute or on the Second Circuit to interpret it. Up to this point, the Second Circuit has not taken a stance on whether a website constitutes a “place of public accommodation.”[27] If appealed, the decision in Winegard v. Newsday may give the Second Circuit the impetus to address whether websites are a “place of public accommodation” under the ADA.
[1] Winegard v. Newsday LLC, No. WL 3617522, 2021 U.S. Dist. LEXIS 153995, at *2.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id. at *3. Winegard alleged Newsday violated §1218(b)(1)(A) and § 12182 (b)(2)(A)(ii) respectively.
[7] Id.
[8] Id.
[9] Id.
[10] Id. at *3–4.
[11] Id. at *4.
[12] Id. at *4. (quoting PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001)).
[13] Id. (citing 42 U.S.C. § 12181(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 [*7] 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.
42 U.S.C. § 12181(7).
[14] Id. at *8 (reasoning “Congress could easily have said ‘all businesses operating in interstate commerce,’ or referred to all ‘retail’ or ‘service’ operations”).
[15] Id.
[16] Id. at *9. Winegard argued that Newsday fell into (1) a “place[] of exhibition or entertainment”; (2) a “place[] of recreation”; (3) a “sales or rental establishment”; and (4) a “service establishment.” See Compl. ¶ 11 (referring to 42 U.S.C. § 12181(7)(C), (I), (E), and (F)).
[17] Id. at *10.
[18] Id. at *12 –15. The court looked to the Webster dictionary definition of “place,” how other courts have defined place, and how the Supreme Court in BSA v. Dale, 530 U.S. 640 (2000)defined “place” means a physical location in the phrase “place of public accommodation.”
[19] Id. at *2.
[20] Palozzi v.Allstate Life Insurance Co., 198 F.3d 28 (2d Cir. 1999).
[21] Winegard, 2021 U.S. Dist. LEXIS 153995, at *15 (“there was no dispute that an insurance office qualifies as [a public accommodation] given that it is listed explicitly among the specific examples in Section 12181(7)(F).”).
[22] Id. at *17–18.
[23] Id. at *15.
[24] Id. (citing Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 575 (D. Vt. 2015).
[25] Id. (quoting United States v. Tohono O’Odham Nation, 563 U.S. 307, (2011)).
[26] Id. at *19.
[27] Winegard, 2021 U.S. Dist. LEXIS 153995, at *1.
