Legal Update: July 2021

The two remaining cases for July may be relatively boring for an ADA attorney but still very interesting for anyone else. First, a short review. In order to be liable under Title III of the ADA, your business needs to "place of public accommodation." We generally think of "places of public accommodation" as any business that provides goods and services to the public but the formal definition is a little different. Specifically, your business needs to fall within one of the following twelve broad categories of businesses:

1. Places of lodging (e.g. , inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);
2. Establishments serving food or drink (e.g. , restaurants and bars);
3. Places of exhibition or entertainment (e.g. , motion picture houses, theaters, concert halls, stadiums);
4. Places of public gathering (e.g. , auditoriums, convention centers, lecture halls);
5. Sales or rental establishments (e.g. , bakeries, grocery stores, hardware stores, shopping centers);
6. Service establishments (e.g. , laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals);
7. Public transportation terminals, depots, or stations (not including facilities relating to air transportation);
8. Places of public display or collection (e.g. , museums, libraries, galleries);
9. Places of recreation (e.g. , parks, zoos, amusement parks);
10. Places of education (e.g. , nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);
11. Social service center establishments (e.g. , day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and
12. Places of exercise or recreation (e.g. , gymnasiums, health spas, bowling alleys, golf courses).

If you don't fall into one of these twelve categories, it's game over and you can't bring a case under the ADA.

In Suris v. Gannett Co., 2021 U.S. Dist. LEXIS 131341 (E.D.N.Y. July 14, 2021), Yaroslav Suris sued USA Today claiming that the newspaper failed to caption videos on its website. Early in the litigation, the court dismissed the case, finding that USA Today's website was not a place of public accommodation.

are not a place of exhibition and entertainment like that of "a motion picture house, theater, concert hall, [or] stadium." See 42 U.S.C. § 12181(7)(C). Nor are they a place of recreation like that of "a park, zoo, [or] amusement park." See id. at § 12181(7)(I). And they are by no means a service establishment like that of "a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or [*5] lawyer, pharmacy, insurance office, professional office of a health care provider, [or] hospital." See id. at § 12181(7)(F). Neither a newspaper publisher nor a digital media content provider falls within any of the twelve enumerated places of public accommodation categories under the ADA.

Id at *4-5. This may seem like a terrible result to disability advocates because news sites, like that of USA Today, are critical avenues of information-- particularly during a national emergency like COVID-19. But, while that may be true, the ADA never reached beyond the 12 categories of places of public accommodation and one of the threshold issues is convincing the court that the organization you're suing falls into one of those 12 categories.

But even if you think you don't fall within one of the 12 categories doesn't mean that you can let down your guard and assume that you'll easily get out of the lawsuit. In Langer v. Interval Int'l, Inc., 2021 U.S. Dist. LEXIS 124470 (N.D. Cal. July 2, 2021), Chris Langer alleged that he could not access the uncaptioned video content on the website of Interval, which was in the business of renting timeshare vacations. The defendant moved to dismiss the complaint because it operate no physical place of public accommodation (it also owned none of the properties listed on its site) but only offered as evidence statements that were available on the Interval site. So, even if the defendant wasn't a place of public accommodation, the court denied the motion to dismiss.