[blindlaw] Fwd: Fw: [Fwd: Judge rules that ADA does not include web sites]

[Patrick Burke]

At 07:08 PM 10/24/02 , womankind wrote:
>Does anyone have an e copy of this decision?
>Thanks.

Hi Stephanie,

Here it is. Actually in another message John Foliot says that he scanned
rather
than typed it. So watch out for Title lll!

Patrick

>To: <VICUG-L at MAELSTROM.STJOHNS.EDU>, <uaccess-l at trace.wisc.edu>,
>   <techwatch at trace.wisc.edu>, <webwatch at yahoogroups.com>
>From: "Kelly Pierce" <kellyjosef at earthlink.net>
>Date: Wed, 23 Oct 2002 07:33:22 -0500
>Subject: [webwatch] full text of Southwest Airlines court decision
>
>
>
>The full text of the Southwest Airlines court decision is available at:
>
>http://www.bytowninternet.com/southwest.html
>
>It is also pasted below.  This is an unauthorized version produced by
>manually typing in the entire text of the document.  The United States
>District Court for the Southern District of Florida will only release a
>scanned PDF version which cannot be read by screen readers.  It will not
>release the original Word Processing file so it can be read by blind
>persons.
>
>Kelly
>
>UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.
>02-21734-CIV-SEITZ/DANDSTRA
>
>UNITED STATES DISTRICT COURT
>SOUTHERN DISTRICT OF FLORIDA
>CASE NO. 02-21734-CIV-SEITZ/DANDSTRA
>
>ACCESS NOW INC., a Florida
>non-profit corporation,and
>ROBERT GUMSON, individually,
>Plaintiffs
>
>vs.
>
>SOUTHWEST AIRLINES, CO.,
>a Texas corporation,
>Defendant.
>
>ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
>
>THIS MATTER is before the Court on Defendant Southwest Airlines, Co.'s
>("Southwest") Motion to Dismiss Plaintiffs' Complaint [DE-11].
>Plaintiffs, Access
>Now, Inc. ("Access Now"), a non-profit, access advocacy organization for
>disabled individuals, and Robert Gumson ("Gumson"), a blind individual,
>filed
>this four-count Complaint for injunctive and declaratory relief under the
>Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq.
>Plaintiffs
>contend that Southwest's Internet website, southwest.com, excludes
>Plaintiffs in violation of the ADA, as the goods and services Southwest
>offers at its
>"virtual ticket counters" are inaccessible to blind persons. Southwest
>has moved to dismiss Plaintiffs' complaint on the grounds that
>southwest.com is
>not a "place of public accommodation" and, therefore, does not fall
>within the scope of Title III of the ADA. The Court has considered the
>parties' thorough
>papers, the extremely informative argument of counsel, and the exhibits
>presented during oral argument. For the reasons stated below the Court
>will grant
>Southwest's motion to dismiss.
>
>Background
>
>Having found that nearly forty-three million Americans have one or more
>mental or physical disabilities, that such individuals continually
>encounter various
>forms of discrimination. and that "the continuing existence of unfair and
>unnecessary discrimination and prejudice denies people with disabilities
>the
>opportunity to compete on an equal basis and to pursue those
>opportunities for which our free society is justifiably famous," Congress
>enacted the ADA
>in 1990. Pub. L. No. 101-336, § 2(a), 104 Stat. 327, 328. Congress'
>stated purposes in enacting the ADA were, among other things, to provide
>"a clear and
>comprehensive national mandate for the elimination of discrimination
>against individual with disabilities," and "clear, strong, consistent,
>enforceable
>standards addressing discrimination against individuals with
>disabilities." Id, Among the statutorily created rights embodied within
>the ADA, is Title
>III's prohibition against discrimination in places of public
>accommodation. 42 U.S.C. § 12182(a).
>
>Since President George Bush signed the ADA into law on July 26, 1990,
>this Nation, as well as the rest of the world, has experienced an era of
>rapidly changing
>technology and explosive growth in the use of the Internet. Today,
>millions of people across the globe utilize the Internet on a regular
>basis for communication,
>news gathering, and commerce. Although this increasingly widespread and
>swiftly developing technology provides great benefits for the vast
>majority of
>Internet users, individuals who suffer from various physical disabilities
>may be unable to access the goods and services offered on many Internet
>websites.
>According to Plaintiffs, of the nearly ten million visually impaired
>persons in the United States, approximately 1.5 million of these
>individuals use the
>Internet.
>
>In an effort to accommodate the needs of the visually impaired, a number
>of companies within the computer software industry have developed
>assistive technologies,
>such as voice-dictation software, voice- navigation software, and
>magnification software to assist visually impaired persons in navigating
>through varying
>degrees of text and graphics found on different websites. However, not
>only do each of the di fferent assistive software programs vary in their
>abilities
>to successfully interpret text and graphics, but various websites also
>differ in their abilities to allow different assistive technologies to
>effectively
>convert text and graphics into meaningful audio signals for visually
>impaired users. This lack of coordination between website programmers and
>assistive
>technology manufacturers has created a situation where the ability of a
>visually impaired individual to access a website depends upon 1he
>particular assisti
>ve software program being used and the particular website being visited.
>1
>
>In light of this rapidly developing technology, and the accessibility
>problems faced by numerous visually impaired Internet users, the question
>remains
>whether Title III of the ADA mandates that Internet website operators
>modify their sites so as to provide complete access to visually impaired
>individuals.
>2
>Because no court within this Circuit has squarely addressed this issue,
>the Court is faced with a question of first impression, namely, whether
>Southwest's
>Internet website, southwest.com, is a place of public accomodation as
>defined by the ADA, and if so, whether Title III of the ADA requires
>Southwest to
>make the goods and services available at its "virtual ticket counters"
>accessible to visually impaired persons.
>
>Southwest, the fourth largest U.S. airline (in terms of domestic
>customers carried), was the first airline to establish a home page on the
>Internet. See
>Southwest Airlines Fact Sheet, at
>http://www.southwest.com/about_swa/press/factsheet.html
>(Last visited Oct. 16, 2002). Southwest's Internet website,
>southwest.com, provides consumers with the means to, among other things,
>check airline fares
>and schedules, book airline, hotel, and car reservations, and stay
>informed of Southwest's sales and promotions. Employing more than 35,000
>ernployees,
>and conducting approximately 2,800 flights per day, Southwest reports
>that "approximately 46 percent, or over $500 million, of its passenger
>revenue for
>first quarter 2002 was generated by online bookings via southwest.com."
>Id. According to Southwest, "[m]ore than 3.5 million people subscribe to
>Southwest's
>weekly Click 'N Save e-mails." Id. Southwest prides itself on operating
>an Internet website that provides "the highest level of business value,
>design
>effectiveness, and innovative technology use achievable on the Web
>today." Id.
>
>Despite the apparent success of Southwest's website, Plaintiffs contend
>that Southwest's technology violates the ADA, as the goods and services o
>offered
>on southwest.com are inaccessible to blind persons using a screen reader.
>3
>(Compl. ¶4), Plaintiffs allege that although "southwest.com offers the
>sighted customer the promise of independence of on-line airline/hotel
>booking in
>the comfort and safety of their home...even if a blind person like
>[Plaintiff] Gumson has a screen reader with a voice synthesizer on their
>computer, they
>are prevented from using the southwest.com website because of its failure
>to allow access." (Compl. ¶4). Specifically, Plaintiffs maintain that
>"the southwest.com
>website fails to provide 'alternative text' which would provide a 'screen
>reader' program the ability to communicate via synthesized speech what is
>visually
>displayed on the website." (Compl. ¶11). Additionally, Plaintiff's assert
>that the southwest.com website "fails to provide online forms which can
>be readily
>filled out by [Plaintiffs] and fails to provide a 'skip navigation link'
>which facilitates access for these blind consumers by permitting them to
>bypass
>the navigation bars on a website and proceed to the main content."
>(Compl. ¶12).
>
>Plaintiffs' four-count Complaint seeks a declaratory judgment that
>Southwest's website violates the communication barriers removal provision
>of the ADA
>(Count I), violates the auxiliary aids and services provision of the ADA
>(Count ll), violates the reasonable modifications provisions of the ADA
>(Count
>III) and violates the full and equal enjoyrnent and participation
>provisions of the ADA (Count IV).
>4
>Plaintiffs ask this Court to enjoin Southwest from continuing to violate
>the ADA, to order Southwest to make its website accessible to persons who
>are blind,
>and to award Plaintiffs attorneys' fees and costs. Southwest has moved to
>dismiss Plaintiffs' Complaint pursuant to Fed. R. Civ. P. 12(b)(6). The
>Court
>has federal question jurisdiction over this matter pursuant to 28 U.S.C.
>§ 1331.
>
>Discussion
>
>A. Standard of Review
>
>Federal Rule of Civil Procedure 12(b)(6) provides that dismissal of a
>claim is appropriate when "it is clear that no relief could be granted
>under any set
>of facts that could be proved consistent with the allegations." Blackston
>v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (quoting Hishon v. King &
>Spalding,
>467 U.S. 69, 73 (1984)). At this stage of the case, the Court must accept
>Plaintiffs' allegations in the Complaint as true and view those
>allegations in
>a light most favorable to Plaintiffs' to determine whether the Complaint
>fails to state a claim for relief. S & Davis Int'l, Inc. v. Republic of
>Yemen,
>218 F.3d 1 292, 1298 (11th Cir. 2000).
>
>B. Plaintiffs Have Failed to State a Claim Upon Which Relief Can be
>Granted
>
>The threshhold issue of whether an Internet website, such as
>southwest.com, is a "place of public accommodation" as defined by the
>ADA, presents a question
>of statutory construction. As in all such disputes, the Court must begin
>its analysis with the plain language of the statute in question. Rendon
>v. Valleycrest
>Prods., Ltd., 294 F.3d 1279, 1283 n. 6 (11th Cir. 2002) (citing K Mart
>Corp. v. Cartier. Inc., 486 U.S. 281, 291 (1988)). The "first step in
>interpreting
>a statute is to determine whether the language at issue has a plain and
>unambiguous meaning with regard to the particular dispute in the case."
>Rendon,
>294 F.3d at 1283 n. 6. (quoting Robinson v. Shell Oil Co., 519 U.S. 337,
>340 (1997)). A court need look no further where the statute in question
>provides
>a plain and unambiguous meaning. Rendon, 294 F.3d at l283 n. 6.
>Definition list of 2 items
>1. Southwest.com is Not a Place of Public Accommodation" as Defined by
>the Plain and Unambiguous Language of the ADA =
>
>Title III of the ADA sets forth the following genera1 rule against
>discrimination in places of public accommodation:
>Block quote start
>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, 1eases (or leases to), or operates a place of public
>accommodation.
>Block quote end
>
>42 U.S.C. § 12182(a) (emphasis added).
>
>The statute specifically identifies twelve (12) particularized categories
>of "places of public accommodation." 42 U.S.C. g 12181(7). Public
>accommodations"
>include:
>List of 12 items nesting level 1
>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, 1ecture 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.
>list end nesting level 1
>
>42 U.S.C. § 12181(7).
>
>Furthermore, pursuant to Congress' grant of authority to the Attorney
>General to issue regulations to carry out the ADA, the applicable federal
>regulations
>also define a "place of public accommodation" as "a facility, operated by
>a private entity, whose operations affect commerce and fall within at
>least one
>of the {twelve (12) enumerated categories set forth in 42 U.S.C. §
>12181(7).}" 28 C.F.R. § 36.104,
>5
>Section 36.104 defines "facility" as "all or any portion of buildings,
>structures, sites, complexes, equipment, rolling stock or other
>conveyances, roads,
>walks, passageways, parking lots or other real or personal property
>including the site where the building, property, structure, or equipment
>is located."
>28 C.F.R. § 36.104. In interpreting the plain and unambiguous language of
>the ADA, and its applicable federal regulations, the Eleventh Circuit has
>recognized
>Congress' clear intent that Title III of the ADA governs solely access to
>physical, concrete places of public accommodation. Rendon, 294 F.3d at
>1283-84;
>Stevens v. Premier Cruises, 215 F. 3d 1237, 1241 (11th Cir. 2000) (noting
>that "[b]ecause Congress has provided such a comprehensive definition of
>'public
>accommodation,' we think that the intent of Congress is clear enough").
>Where Congress has created specifically enumerated rights and expressed
>the intent
>of setting forth "clear, strong, consistent, enforceable standards,"
>courts must follow the law as written and wait for Congress to adopt or
>revise legislatively
>defined standards that apply to those rights. Here, to fall within the
>scope of the ADA as presently drafted, a public accommodation must be a
>physical,
>concrete structure. To expand the ADA to cover "virtual" spaces would be
>to create new rights without well-defined standards.
>
>Notwithstanding the fact that the plain and unambiguous language of the
>statute and relevant regulations does not include Internet websites among
>the definitions
>of "places of public accommodation," Plaintiffs allege that the
>southwest.com website falls within the scope of Title III, in that it is
>a place of "exhibition,
>display and a sales establishment." (Compl, ¶9). Plaintiffs' argument
>rests on a definition they have created by selecting language from three
>separate
>statutory subsections of 42 U.S.C. § 12181(7). See 42 U.S.C. gg
>12181(7)(C), (H) & (E).
>6
>While Plaintiffs can, as advocates, combine general terms from three
>separate statutory subsections, and apply them to an unenumerated
>specific term, namely
>Internet websites, the Court must view these general terms in the
>specific context in which Congress placed each of them. Under the rule of
>ejusdem generis,
>"where general words follow a specific enumeration of persons or things,
>the general words should be limited to persons or things similar to those
>specifically
>enumerated." Allen v. A.G. Thomas, 161 F.3d 667, 671 (11th Cir. 1998)
>(quoting United States v. Torkette, 452 U.S. 576, 581-82 (1981)); see
>also Snapp
>v. Unlimited Concepts. Inc, 208 F.3d 928, 934 (11 th Cir. 2000); Sutton
>v. Providence St. Joseph Medical Ctr., 192 F.3d 826, 834 (9th Cir. 1999).
>Here,
>the general terms, "exhibition," "display," and "sales eestablishment"
>are limited to their corresponding specifically enumerrated terms, all of
>which
>are physical, concrete structures, namely: "motion picture house,
>theater, concert hall, stadium" "museum, library, gallery" and "bakery,
>grocery store,
>clothing store, hardware store, shopping center," respeetively. 42 U.S.C.
>$$ 12181(7)(C), (H) 8a (E). Thus, this Court cannot properly construe "a
>place
>of public accommodation" to include Southwest's Internet website,
>southwest.com.
>2. Plaintiffs Have Not Established a Nexus Between Southwestcom and a
>Physical, Concrete Place of Public Accommodation =
>
>Although Internet websites do not fall within the scope of the ADA's
>plain and unambiguous language, Plaintiffs contend that the Court is not
>bound by the
>statute's plain language, and should expand the ADA's application into
>cyberspace.
>7
>As part of their argument, Plaintiffs encourage the Court to follow
>Carparts Distribution Ctr.. Inc. v. Automotive Wholesaler's Assoc. of New
>England, in
>which the First Circuit broadly held that the ADA's definition of "public
>accommodation" is not limited to actual physical structures, but
>includes, inter
>alia, health-benefit plans. Carparts, 37 F.3d 12, 19 (1st Cir. 1994).
>8
>While application of the broad holding and dicta in Carparts to the facts
>in this case might arguably require this Court to include Internet
>websites within
>the ADA's definition of "public accommodations," the Eleventh Circuit has
>not read Title III of the ADA nearly as broadly as the First Circuit.
>9
>See Rendon, 294 F.3d 1279.
>
>In Rendon, a recent Eleventh Circuit case addressing the scope of Title
>III, a group of individuals with hearing and upper-body mobility
>impairments sued
>the producers of the television game show, "Who Wants To Be A
>Millionaire," alleging that the use of an automated fast finger telephone
>selection process
>violated the ADA because it excluded disabled individuals from
>participating. The district court dismissed the complaint on grounds that
>the automated
>telephone selection process was not conducted at a physical location, and
>therefore, was not a "place of public accommodation" as defined by the
>ADA. The
>Eleventh Circuit reversed, holding that the telephone selection process
>was "a discriminatory screening mechanism...which deprives [the
>plaintiffs] of
>the opportunity to compete for the privilege of being a contestant on the
>[game show]." Rendon, 294 F.3d at 1286. The Eleventh Circuit observed
>that "[t]here
>is nothing in the text of the statute to suggest that discrimination via
>an imposition of screening or eligibiiity requirements must occur on site
>to offend
>the ADA." Id. at 1283-B4. Most significantly, the Eleventh Circuit noted
>that the plaintiffs stated a claim under Title III because they
>demonstrated "a
>nexus between the challenged service and the premises of the public
>accommodation," namely the concrete television studio. Id. at 12S4 n. 8.
>
>Plaintiffs contend that the Eleventh Circuit in Rendon aligned itself
>with the First Circuit in Carparts, and that Rendon requires a braad
>reading of thc
>ADA to include Intemet websites within the "public accommodations"
>definition. However, these arguments, while emotionally attractive, are
>not legally
>viable for at least two reasons. First, contrary to Plaintiff's'
>assertion that the Eleventh Circuit aligned itself with Carparts, the
>Eleventh Circuit
>in Rendon not only did not approve of Carparts, it failed even to cite
>it.
>10
>
>Second, whereas the defendants in Rendon conceded, and the Eleventh
>Circuit agreed, that the game show at issue took place at a physical,
>public accommodatian
>(a concrete television studio), and that the fast finger telephone
>selectian process used to select contestants tended to screen out
>disabled individuals,
>the Intemet website at issue here is neither a physical, public
>accommodation itself as defined by the ADA, nor a means to accessing a
>concrete space such
>as the specific television studio in Rendon.
>11
>294 F.3d at 1284.
>
>Although Plaintiff's contend that this "is a case seeking equal access to
>Southwest's virtual 'ticket counters' as they exist on-line," (Pl.'s
>Resp. at
>13), the Supreme Court and the Eleventh Circuit have both recognized that
>the Internet is "a unique medium - known to its users as 'cyberspace' -
>located
>in no particular geographical location but available to anyone, anywhere
>in the world, with access to the Intemet." Voyeur Dorm, L.C. v. Citv of
>Tampa
>265 F.3d 1232, 1237 n.3 (11th Cir. 2001) (quoting Reno v. ACLU, 521 U.S.
>844, 851 (1997)). Thus, because the Internet website, southwest.com does
>not exist
>in any particular geographical location, Plaintiffs are unable to
>demonstrate that Southwest's website impedes their access to a specific,
>physical, concrete
>space such as a particular airline ticket counter or travel agency.
>12
>Having failed to establish a nexus between southwest.com and a physical,
>concrete place of public accammodation, Plaintiff's have failed to state
>a claim
>upon which relief can be granted under Title III of the ADA.
>13
>list end
>
>Conclusion
>
>Accordingly, based upon the foregoing reasons, it is hereby ORDERED that
>Defendant Southwest's Motion to Dismiss Plaintiffs' Complaint [DE-11] is
>GRANTED,
>and this action is DISMISSED WITH PREJUDICE. All pending motions not
>otherwise ruled upon are denied as moot, and this case is CLOSED.
>
>DONE and ORDERED in Miami. Florida, this 18th day of October, 2002.
>PATRICIA A. SEITZ
>UNITED STATES DISTRICT JUDGE
>
>CC:
>Magistrate Judge Ted E. Bandstra
>
>K. Renee Schimkat, Esq.
>Garth T. Yearick, Esq.
>Counsel for Defendant Southwest Airlines, Co.
>Carlton Fields, P.A. 4000 Bank of America Tower at Int'l Place
>100 SE 2nd St.
>Miarni, FL 33131
>fax 305-530-0055
>Steven R. Reininger, Esq.
>Howard R. Behar, Esq,
>Counsel for Plaintiffs
>Rasco Reininga Perez & Esquenazi, P.L.
>283 Catalonia Avc., 2nd Flr.
>Coral Gables, FL 33134
>fax 305-476-7102
>
>1 - Although it appears that no well-defined, generally accepted
>standards exist for programming assistive software and websites so as to
>make them uniformly
>compatible, Plaintiffs provided the Court with a copy of the Web Content
>Accessibility Guidelines 1.Q, W3C Recommendation 5-May-1999, produced by
>the Web
>Accessability Initiative See Web Content Accessibility Guidelines 1.0, at
>http://www.w3.org/TR/WCAG 10/
>(Last visited Oct, i6, 2002). While "these guidelines explain how to make
>Web content accessible to people with disabilities," the guidelines
>further note
>that they do "not provide specific information about browser support for
>different technologies as that information changes rapidly." Id.
>Moreover, not
>only are these guidelines over three-years old, but there is no
>indication that the Web Accessibility Initiative, which "pursues
>accessibility of the Web
>through five primary areas of work: technology, guidelines, tools,
>education and outreach, and research and development," is a generally
>accepted authority
>on accessibility guidelines. See About WAI. at
>http://www.w3.org/WAI/about.html
>Last visited Oct. 16, 2002)
>
>2 - Some commentators, while recognizing the paucity of case law in this
>area, have suggested that Internet websites fall within the scope of the
>ADA. See,
>e,g,, Jeffrey Scott Ranen, Note. Was Blind But Now I See: The Argument
>for ADA Applicability to the Internet, 22 B.C. Third World L J. 389
>(2002); Adam
>M. Schloss, Web Sight for Visually-Disabled People Does Title III of the
>Americans with Disabilities Act Apply to Internet Websites?, 35 Colum.
>3.I.. k
>Soc. Probs. 35 (2001); Matthew A. Stowe Note, Interpreting Place of
>Public Accommodation' Under Title III of the ADA: A Technical
>Determination with Potentially
>Broad Civil Rights Implications, SO Duke L.J. 297 (2000); Jonathan Bick.
>Americans with Disabilities Act and the Internet 10 Alb. L.J. Sci. k
>Tech. 205
>(2000).
>
>3 - Plaintiffs claim that although purchasing tickets at southwest.com is
>"technically possible, plaintiffs found purchasing a ticket to be
>extremely difficult..."
>(Compl, at 7). Plaintiffs do not argue that they are unable to access
>such goods and services via alternative means such as telephone or by
>visiting a
>particular airline ticket counter or travel agency.
>
>4 - Plaintiffs' Counsel informed the Court that Plaintiffs made no effort
>to resolve this dispute prior to filing their Complaint. (Tr., Oct. 16,
>2002).
>Although the law does not require Plaintiffs to confer with Southwest
>prior to filing this action, in light of Plaintiffs' Counsel's discussion
>of the
>proactive measures that other companies, such as Amazon.com, have taken
>to modify their websites to make them more accessible to visually
>impaired persons,
>it is unfortunate that Plaintiffs made no attempt to resolve this matter
>before resorting to litigation.
>
>5 - The Court may consider the C.F.R. definitions, as Congress
>specifically directed the Attorney General to "issue regulations in an
>accessible format
>to carry out the provisions of [the ADA]... that include standards
>applicable to facilities and vehicles covered under section l2182 of [the
>ADA.]" 42
>U.S.C. § l21S6(b).
>
>6 - Plaintiffs ereated their definition from the following italicized
>language in three subsections of 42 U.S.C. ) 12181(7}:
>List of 3 items
>. "a motion picture house, theater, concert hall, stadium, or other place
>of exhibition or entertainment," 42 U.S.C. § 12181(7)(C);
>. "a museum, library, gallery, or other place of public display or
>collection," 42 U.S.C. § 12181(7)(H); and
>. "a bakery, grocery store, clothing store, hardware store, shopping
>center, or other sales or rental estahlishnteat," 42 U.S.C. §
>12181(7)(E).
>list end
>
>7 - Plaintiffs concede that neither the legislative history of the ADA
>nor the plain language of the statute and applicable federal regulations,
>contain
>any specific reference to the Internet or cyberspace. (Tr., Oct. 16,
>2002).
>
>8 - Although Carparts does not explicitly address the issue of whether an
>Internet website falls within the definition of "public accommodation,"
>Plaintiffs
>focus on the First Circuit's dicta discussing the public policy reasons
>for why the ADA's definition of "public accommodations" should be read
>broadly:
>Block quote start
>By including "travel service" among the list of services considered
>"public accommodations," Congress clearly contemplated that "service
>establishments"
>include providers of services which do not require a person to physically
>enter an actual physical structure. Many travel services conduct business
>by
>telephone or correspondence without requiring their customers to enter an
>office in order to obtain their services. Likewise, one can easily
>imagine the
>existence of other service establishments conducting business by mail and
>phone without providing facilities for their customers to enter in order
>to utilize
>their services. It would be irrational to conclude that persons who enter
>an office to purchase services are protected by the ADA, but persons who
>purchase
>the same services over the telephone or by mail are not. Congress could
>not have intended such an absurd result.
>Block quote end
>
>Carparts, 37 F.3d at 19.
>
>9 - In addition to Carparts Plaintiffs encourage this Court to follow Doe
>v, Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999), in which
>Chief
>Jvdge Posner approvingly cited to Carparts and stated in dicta that:
>Block quote start
>The core meaning of [42 U.S.C. § 12182(a)], plainly enough, is that the
>owner or operator of a store, hotel, restaurant, dentist's office, travel
>agency,
>theater, Web site, or other facility (whether in physical space or in
>eleetronic space, [Carparts], that is open to the public cannot exclude
>disabled
>persons from entering the facility and, once in, from using the facility
>in the same way that the nondisabled do.
>Block quote end
>
>Plaintiffs also cite to a September 9, 1996 letter from Deval L. Patrick,
>Assistant Attorney General, Civil Rights Division, United States
>Department of
>Justice, to U.S. Senator Tom Harkin, advising the Senator that "[c]overed
>entities that use the Intemet for communications regarding their
>programs, goods,
>or services must be prepared to offer those communications through
>accessible means as well." (Pl.'s Resp., Exh. A). Finally, Plaintiffs
>cite the recent
>unpublished opinion in Vincent Martin et al. v. Metro. Atlanta Rapid
>Transit Authority, No. 1:01-CV-3255-TWT (N.D. Ga. Oct. 7, 2002), in which
>U.S. District
>Jadge Thomas W. Thrash, Jr. held that until the Metropolitan Atlanta
>Rapid Transit Authority ("MARTA") reformats its lnternet website in such
>a way that
>it can be read by visually impaired persons using screen readers, MARTA
>is "violating the ADA mandate of making adequate communications capacity
>available,
>through accessible formats and technology, to enable users to obtain
>information and schedule service.'" Vincent Martin et al. v. Metro.
>Atlanta Rapid
>Transit Authoritv, No. 1:01-CV-3255-TWT, at 34 (N.D. Ga. Oct. 7, 2002)
>(quoting 49 C.F.R. § 37.167(f)). That case, however, is distinguishable
>in one critical
>respect: Plaintiffs in Vincent Martin filed suit under both the
>Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 et seq., and
>Title II of the ADA,
>42 U.S.C. § 12132, not Title III as in the present case. Title II
>prohibits qualified individuals from being "excluded frorn participation
>in or [being]
>denied the benefits of the services, programs, or activities of a public
>entity, or [being] subjected to discrimination by any such entity." 42
>U.S.C.
>§ 12132. Title II of thc ADA defines "public entity" as "(A) any State or
>local government; (B) any department, agency, special purpose district,
>or other
>instrumentality of a State or States or local government; and (C) the
>National Railroad Passenger Corporation, and any commuter authority...."
>42 U.S.C.
>§ 12131. Because the present case deals with Title III, not Title II of
>the ADA, and Plaintiff's could not allege any facts that would place
>Southwest
>within the definition of a "public entity" under Title ll, Vincent Martin
>is inapplicable.
>
>10 - In fact, the Eleventh Circuit recognized those courts which declined
>to follow Carparts, noting that "to the extent that a plaintiff intends
>to raise
>a claim of disability discrimination based on the kind of insurance
>offered, the plaintiff must demonstrate that the policy was offered to
>the plaintiff
>directly by the insurance company and was connected with its offices, as
>opposed to its being a privilege provided by the plaintiff's employer."
>Rendon.
>294 F.3d at 1284 n. 8 (emphasis added) (citing Weyer v. Twentieth Century
>Fox Film Corp 198 F.3d 1104, 1114-15 (9th Cir. 2000) (noting that "some
>connection
>between the good or service complained of and an actual physical place is
>required) Ford v Schering-Plough Corp 145 F.3d 601,612-13 (3d. Cir. 1998)
>(noting
>that "[t]he plain meaning of Title III is that a public accommodation is
>a place..."); Parker v Metro. Life Ins. Co 121 F.3d 1006, 1011-14 (6th
>Cir. 1997)
>(noting that "[a]s is evident by § 12181(7), a public accommodation is a
>physical place...")).
>
>11 - In recognizing the requirement that a plaintiff establish "a nexus
>between the challenged service and the premises of the public
>accommodation." the
>Eleventh Circuit noted that the plaintiffs in Rendon stated a claim under
>Title III of the ADA because they sought 'the privilege of competing in a
>contest
>held in a concrete space..." Rendon, 294 F.3d at 1284 (emphasis added);
>compare Stoutenborough v Natl. Football League Inc., 59 F.3d 580 (6th
>Cir. 1995)
>(holding that hearing impaired plaintiffs, who alleged that National
>Football League "blackout rule" violated Title lll of ADA, failed to
>state a cause
>of action, as there was no nexus between televised broadcast of football
>game and physical place of public accommodation). See also Torres v AT&T
>Broadband
>LLC 158 F. Supp. 2d 1035 (N.D. Cal. 2001) (dismissing Title III claim
>that cable service provider must make a list of available programs
>accessible to
>the visually impaired, and holding that "neither the digital cable system
>nor its on-screen channel menu can be considered a place of public
>accommodation
>within the meaning of the ADA"); Access Now Inc. v, Claire's Stores, Inc
>No. 00-1 40 17-CIV-MOORE, 2002 WL 1162422, at *5 (S.D. Fla. May 7, 2002)
>(noting
>in approving a Title lll class settlement that "[n]o court has held that
>internet websites made available to the public by retail entities must be
>accessible").
>
>12 - It is important to note that aircrafts are explicitly exempt from Ti
>tle lll of the ADA. 42 U.S.C. § 12181(10). Plaintiffs do not argue that
>Southwest's
>website impedes their access to aircrafts.
>
>13 - Given the number of visually impaired persons who utilize the
>Internet for commerce, and the significant amount of business that
>Southwest obtains
>through its Internet website, it is unfortunate that the parties have not
>cooperated to develop a creative solution that benefits both parties and
>which
>avoids the costs and polarizing effects of litigation. It is especially
>surprising that Southwest, a company which prides itself on its consumer
>relations,
>has not voluntarily seized the opportunity to employ all available
>technologies to expand accessibility to its website for visually impaired
>customers
>who would be an added source of revenue. That being said, in light of the
>rapidly developing technology at issue, and the lack of well defined
>standards
>for bringing a virtually infinite number of Internet websites in to
>compliance with the ADA, a precondition for taking the ADA into "virtual"
>space is
>a meaningful input from all interested parties via the legislative
>process. As Congress has created the statutorily defined rights under the
>ADA, it is
>the role of Congress, and not this Court, to specifically expand the
>ADA's definition of "public a accommodation" beyond physical, concrete
>places of public
>accommodation, to include "virtual" places of public accommodation.
>
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