Winegard v. Newsday LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Jay WINEGARD, on behalf of himself

and all others similarly situated,

MEMORANDUM & ORDER

Plaintiff, 19-CV-04420(EK)(RER)

-against-

NEWSDAY LLC d/b/a NEWSDAY,

Defendant.

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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, 140 S. Ct. 122 (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, 136 S. Ct. 1540, 1549 (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

(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 (1856) (passenger steamships were “for the public

accommodation”); Fanning v. Gregoire, 57 U.S. 524, 529 (1853)

(ferries); Proprietors of Charles River Bridge v. Proprietors of

Warren Bridge, 36 U.S. 420, 554 (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 (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 using the clunkier phrase “office

of an accountant or lawyer,” for example; and it would have said

“health care practice” rather than “office of a health care

provider.” Apropos of this case, Congress could easily have

included “newspapers.” It did not. These choices demonstrate

Congress’s decision to apply the ADA’s anti-discrimination

provision to physical places rather than business operations

generally.

Some courts have written that the ADA’s framers could

not have anticipated the world wide web when they crafted the

1 Some courts have noted that “travel service” does not invariably refer

to a physical space, though there is no suggestion in the statute (or in

logic) that a travel service must be a virtual operation. Read in context,

“travel service” appears to refer to travel agencies and to facilities — such

as American Express counters — offering traveler’s cheques, currency-exchange

services and the like. These businesses commonly operated out of physical

facilities when the ADA was adopted, and still do (albeit in lesser numbers).

See, e.g., Liberty Travel: Our Story, Liberty Travel (Liberty opened its

first travel agent storefront in 1951, and continues to offer locations

throughout the United States), https://www.libertytravel.com/about (last

visited August 16, 2021).

“public accommodation” definition in 1990.2 This is not really

true.3 But even if it were, there were countless other types of

businesses operating outside of brick-and-mortar premises in

1990, including some that had been in operation for decades.

The Sears Roebuck catalog, for example, dated to 1888. See

History of the Sears Catalog, Sears Archives, (“In 1888, Richard

Sears first used a printed mailer to advertise watches and

jewelry . . . . The time was right for mail order

merchandise.”);4 see also An Inside Look at an Outdoor Icon, L.L.

2 See, e.g., Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d

196, 200 (D. Mass. 2012) (observing that “web-based services did not exist

when the ADA was passed in 1990 and, thus, could not have been explicitly

included in the Act”); Nat'l Fed'n of the Blind v. Scribd Inc., 97 F. Supp.

3d 565, 575 (D. Vt. 2015) (“When [the ADA] was enacted Congress had no

conception of how the Internet would change global commerce.”).

3 By 1990, the internet had been in development for decades, with the

U.S. government leading the effort. And Congress knew well by 1990 that the

internet was coming. The Senate held hearings in 1989 “to explore the

potential of a national information superhighway.” Jeffery Kahn, Building

and Rescuing the Information Superhighway, Berkeley Lab ScienceBeat,

https://www2.lbl.gov/Science-Articles/Archive/information-superhighway.html

(last visited August 16, 2021); see also H.R. Sub. Comm. on Science Space and

Technology, 100th Congress, Rep. on High Performance Computing (1989). The

internet was then, of course, “still in its earliest incarnation.” John

Markoff, Ideas & Trends: Scientists Share Data at Speed of Light, N.Y. TIMES

(June 4, 1989), https://www.nytimes.com/1989/06/04/weekinreview/ideas-trends-

scientists-share-data-at-speed-of-light.html; see also id. (“Senator Albert

Gore Jr., a Tennessee Democrat, has introduced a bill . . . that would create

a data ‘superhighway’ to link scientists . . . . The plan is to speed the

exchange of data by thousands of times.”). But retailers’ embrace of the

internet followed soon thereafter. See, e.g., Peter H. Lewis, Attention

Shoppers: Internet Is Open, N.Y. TIMES, Aug. 12, 1994,

https://www.nytimes.com/1994/08/12/business/attention-shoppers-internet-is-

open.html.

4 See http://www.searsarchives.com/catalogs/history.htm (last visited

August 16, 2021). “Reflecting modern trends in retailing, the [Sears]

company decided to stop producing the general catalog in 1993” — after the

adoption of the ADA. Id. (noting that Sears continued offering “many [other]

specialty catalogs” after that point).

Bean (L.L.’s circulars evolved into a catalog by 1927);5 How

America Fell in and out of Love with J. Crew, CNN (J. Crew

“relaunched” as a catalog-only retailer in 1983);6 ‘8 CDs for a

Penny’ Company Files for Bankruptcy, NPR (Columbia House started

selling vinyl records via mail order in 1955);7 Don’t Judge the

Book-of-the-Month Club by Its Cover, Smithsonian Magazine (Book-

of-the-Month-Club began its subscription service in 1926);8

QVC.com (television shopping channel’s first broadcast was in

1986);9 History of As Seen on TV, As Seen on TV (first “As-Seen-

on-TV” infomercial aired in the mid-1950s).10 If Congress had

intended, it could easily have required catalogs to be printed

in Braille and TV shows to include closed captioning by

including such media within the scope of “public

accommodations.”11

5 https://www.llbean.com/llb/shop/516918?nav=ln-516917 (last visited

August 16, 2021).

6 https://www.cnn.com/style/article/j-crew-bankruptcy-fashion-

history/index.html (last visited August 16, 2021).

7 https://www.npr.org/sections/thetwo-way/2015/08/11/431547925/8-cds-

for-a-penny-company-files-for-bankruptcy (last visited August 16, 2021).

8 https://www.smithsonianmag.com/smart-news/dont-judge-book-month-club-

its-cover-180962382/ (last visited August 16, 2021).

9 https://corporate.qvc.com/ (last visited August 16, 2021).

10 https://www.asseenontvwebstore.com/category-s/127.htm (last visited

August 16, 2021).

11 The ADA was amended in 2008. See ADA Amendments Act of 2008, Pub. L.

110-325, 112 Stat. 3553 (2008). If websites had indeed been overlooked in

the 1990 bill simply because the internet was in its infancy, Congress could

Plaintiff argues that Newsday’s website falls within

four specific residual clauses in Section 12181: that it is a

“place[] of exhibition or entertainment”; a “place[] of

recreation”; a “sales or rental establishment”; and a “service

establishment[].” See Compl. ¶ 11 (referring to 42 U.S.C.

§ 12181(7)(C), (I), (E), and (F)); see also Plaintiff’s

Memorandum of Law in Opposition to Defendant’s Motion to Dismiss

the Complaint (“Pl.’s Opp.”) at 1, ECF No. 16 (citing 42 U.S.C.

§ 12181(7)(E)). But these general clauses must be read in light

of the specific lists they follow. The maxim ejusdem generis

teaches that a residual clause’s meaning should be confined to

the characteristics of the specific items listed before it.

E.g., Hall St. Assocs. v. Mattel, 552 U.S. 576, 586 (2008)

(“[W]hen a statute sets out a series of specific items ending

with a general term, that general term is confined to covering

subjects comparable to the specifics it follows.”); see also

Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001)

(“[W]here general words follow specific words in a statutory

enumeration, the general words are construed to embrace only

objects similar in nature to those objects enumerated by the

have amended the definition to clarify their inclusion with the later

amendment. The fact that it did not — even after cases like Weyer, 198 F.3d

at 1114 and Ford, 145 F.3d at 614 were decided — cuts against the Plaintiff’s

position. Monessen Sw. Ry. Co. v. Morgan, 486 U.S. 330, 338 (1988) (“We have

recognized that Congress’ failure to disturb a consistent judicial

interpretation of a statute may provide some indication that Congress at

least acquiesces in, and apparently affirms, that interpretation.”).

preceding specific words.” (quoting 2A N. Singer, Sutherland on

Statutes and Statutory Construction § 47.17 (1991)).

Other circuits have applied this maxim (or the related

doctrine of noscitur a sociis) to hold that Section 12181(7) is

limited to physical places.12 E.g., Weyer v. Twentieth Century

Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (“All the

items on this list . . . have something in common. They are

actual, physical places . . . .”); Ford v. Schering–Plough

Corp., 145 F.3d 601, 614 (3d Cir. 1998) (“Pursuant to the

doctrine of noscitur a sociis . . . we do not find the term

‘public accommodation’ or the terms in 42 U.S.C. § 12181(7) to

refer to non-physical access or even to be ambiguous as to their

meaning.”); see also Thorne v. Boston Mkt. Corp., 469 F. Supp.

3d 130, 140 (S.D.N.Y. 2020) (“The subject of the residual clause

is ‘establishment,’ not the ‘food or drink’ that is being

‘served.’ Therefore, based on the text of the statute alone, a

gift card does not plausibly fall into the scope of the text’s

definition of a ‘public accommodation.’” (cleaned up)). All the

12 The maxim of noscitur a sociis provides that individual items

appearing in a list should be read to share common attributes. E.g., S.D.

Warren Co. v. Maine Bd. of Env’t Prot., 547 U.S. 370, 378 (2006); see also

Beecham v. United States, 511 U.S. 368, 371 (1994) (“That several items in a

list share an attribute counsels in favor of interpreting the other items as

possessing that attribute as well.”). When an enumerated item in a statutory

list has multiple definitions, the word should be read according to the

definition most similar to the nearby words’ meanings. See Dole v. United

Steelworkers of Am., 494 U.S. 26, 36 (1990).

specific examples preceding Section 12181’s residual clauses

refer to brick-and-mortar locations. Applying the maxims of

ejusdem generis and noscitur a sociis, the residual clauses must

be read to reach only “public accommodation[s]” of the same

type.

Other courts reading the ADA definition’s text have

come to the same conclusion. For example, the Eleventh Circuit

in Gil v. Winn-Dixie Stores, Inc. looked only to the

“unambiguous and clear” plain language of Title III. 993 F.3d

1266, 1276–77 (11th Cir. 2021). The twelve subparagraphs in

Section 12181(7), it observed, list only “tangible, physical

places” and no “intangible places or spaces.” Id. A “public

accommodation” is thus “limited to actual, physical places.”

Id.

2. “Place Of”

All this is clear enough even before we get to the

statute’s use of the phrase “place of” to modify the term

“public accommodation.” Set together in sequence, the

collective phrasing leaves no doubt that Section 12182(a) was

not meant to reach the website of a business like Newsday.

Dictionaries overwhelmingly define “place” to mean a physical

location. Webster’s Third, for example, begins with the

following definitions: “1. open space in a city, space,

locality”; “1.a. a way for admission or transit”; “1.b. physical

environment”; “1.c. physical surroundings.” Webster’s Third New

International Dictionary 1727 (2002). Webster’s Second,

similarly, begins with: “An open space, or square, in a city or

town.” Webster’s Second New International Dictionary 1877

(1945).

Other courts looking to the definition of “place” have

come to similar understandings. In 2017, the Federal Circuit

addressed the phrase “regular and established place of business”

in 28 U.S.C. § 1400, which governs venue in patent infringement

cases. In re Cray, Inc., 871 F.3d 1355 (Fed. Cir. 2017). In

holding that “regular and established place of business”

requires a “physical place,” the court wrote:

The statute requires a “place,” i.e., “[a]

building or a part of a building set apart for

any purpose” or “quarters of any kind” from

which business is conducted. William Dwight

Whitney, The Century Dictionary, 732 (Benjamin

E. Smith, ed. 1911); see also Place, Black’s Law

Dictionary (1st ed. 1891) (defining place as a

“locality, limited by boundaries”). The statute

thus cannot be read to refer merely to a virtual

space or to electronic communications from one

person to another.

Id. at 1362 (emphasis added); see also, e.g., Magee v. Coca-Cola

Refreshments USA, Inc., 833 F.3d 530, 534-35 (5th Cir. 2016)

(“Webster’s Third New International Dictionary defines . . .

‘place’ as ‘a building or locality used for a special purpose.’

. . . . Black's Law Dictionary defines ‘place of business’ as

‘[a] location at which one carries on a business.’”).

The United States Supreme Court has not reached the

precise ADA question presented here. But it has read the word

“place” to invoke a “physical location” in the exact phrase —

“place of public accommodation” — at issue in this case. Boy

Scouts of America v. Dale, 530 U.S. 640 (2000), involved the

constitutionality of a state law: the Court considered whether

New Jersey had violated the First Amendment’s right of

expressive association in applying its public-accommodations law

to a private membership group. Writing for the majority, Chief

Justice Rehnquist noted that “[s]tate public accommodations laws

were originally enacted to prevent discrimination in traditional

places of public accommodation — like inns and trains.” Id. at

656. While acknowledging that state-law definitions had

expanded over the years, the majority nevertheless appeared

taken aback that New Jersey’s Supreme Court had “applied its

public accommodations law to a private entity without even

attempting to tie the term ‘place’ to a physical location.” Id.

at 657. This observation, made after the adoption of the ADA in

1990, affirms that “places” of public accommodation are

presumptively physical locations, at least in federal court.

The Supreme Court went on to consider the phrase

“place of public accommodation” again a year later — this time

in the context of the ADA itself. In determining whether a ban

on using golf carts discriminated against a golfer who could not

walk the entire course, the Supreme Court began with a focus on

“place”: “The [PGA Tour] events occur on ‘golf course[s],’ a

type of place specifically identified by the Act as a public

accommodation.” PGA Tour, Inc., 532 U.S. at 677 (2001)

(emphasis added).

For these reasons, I conclude that the text of the

ADA’s definition of “public accommodation” clearly refers to

physical places, and does not include stand-alone websites.

D. Pallozzi

Most district court cases reaching the opposite

conclusion in this Circuit have done so in reliance on the

Second Circuit’s decision in Pallozzi v. Allstate Life Insurance

Co., 198 F.3d 28 (2d Cir. 1999). But Pallozzi does not compel

an outcome at odds with the plain-text reading above.

Pallozzi involved a lawsuit against an insurance

company that refused to issue a policy based on the plaintiffs’

mental-health diagnoses. The holding did not turn on the

definition of “place of public accommodation” in Section

12181(7). There was no dispute that an “insurance office”

qualifies as such, given that it is listed explicitly among the

specific examples in Section 12181(7)(F). 198 F.3d at 32 (“We

start with the fact that Title III specifies an ‘insurance

office’ as a ‘public accommodation.’”).13 Having accepted that

an insurance office is a “public accommodation,” the Court of

Appeals turned to the application of Section 12182(a) (“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 . . . .”).

The Court of Appeals’ analysis thus focused on whether

an insurance policy is a “good” or “service” of an insurance

office. Unsurprisingly, the court concluded that the “full and

equal enjoyment” of an insurer’s “goods and services” extends to

the consumption of insurance policies. The panel held that

“Title III does regulate the sale of insurance policies in

insurance offices.” Id. at 33 (emphasis added). The physical

place, per Pallozzi, is a condition precedent; once that

condition is satisfied, the goods and services sold by that

place of public accommodation are swept within the ADA’s remit.

But those goods and services are not covered by the

ADA unless and until the “place of public accommodation” test is

satisfied. That condition is not satisfied here; there is no

13 42 U.S.C. § 12181(7)(F) identifies the following as public

accommodations: “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.” (Emphasis

added.)

allegation that Newsday operates public-facing, physical places

in which newspapers — or any other goods or services — are

sold.14

In that regard, Pallozzi’s holding (and its

application to this case) is consistent with the decisions of

other circuits considering the applicability of the ADA to

insurance policies. In Weyer v. Twentieth Century, for example,

the Ninth Circuit held that an employer-issued insurance policy

is not covered under the ADA. 198 F.3d at 1114. Under the

statute, according to Weyer, “some connection between the good

or service complained of and an actual physical place is

required.” Id. And that requirement could not be satisfied

when the insurance policy in question was not being sold by an

insurance office. Likewise, in Parker v. Metropolitan Life

Insurance Co., the Sixth Circuit held that “a public

accommodation is a physical place.” 121 F.3d 1006, 1010-11 (6th

Cir. 1997). “A benefit plan offered by an employer” was not

covered, therefore, because it was “not a good offered by a

place of public accommodation.” Id. (noting that a “public

accommodation is a physical place”); see also Ford, 145 F.3d at

14 Plaintiff argues that Newsday “has its own television and

video/internet studio in addition to its publishing and adverting production

facilities and offices.” Opp. at 5. But Plaintiff does not allege that

these facilities are open to Newsday’s customers, or that Newsday sells its

newspapers (or any other “goods” or “services”) at those locations.

612-13 (plaintiff who received disability benefits through her

employer was not “discriminated against in connection with a

public accommodation” because “she had no nexus to [the

insurance company’s] ‘insurance office’”).

At most, therefore, Pallozzi supports the conclusion

that websites are swept up in Title III when they offer the same

“goods and services” as the business’s brick-and-mortar

operation. Other courts have reached similar conclusions in

applying the ADA to the websites of businesses that do maintain

public-facing, physical storefronts (unlike Newsday). See,

e.g., Domino's Pizza, 913 F.3d at 905–06 (holding that the ADA

applies to Domino’s website and app, which “facilitate access to

the goods and services of a place of public accommodation —

Domino’s physical restaurants”). In Suvino v. Time Warner

Cable, Inc., No. 16-CV-7046, 2017 WL 3834777, at *2 (S.D.N.Y.

Aug. 31, 2017), the court seems to have read Pallozzi just as I

do, on its way to holding that the ADA applied to Time Warner

Cable’s website because the “website functionalities . . . are

among the service features sold through the physical locations

and thus are an aspect of the goods and services offered by the

stores as public accommodations.”

To be sure, several district courts in this Circuit

have concluded that a website is a place of public accommodation

in its own right, whether or not it is attached to a brick-and-

mortar business. See, e.g., Winegard v. Crain Commc'ns, Inc.,

No. 20-CV-1509, 2021 WL 1198960, at *2 (S.D.N.Y. Mar. 30, 2021);

Thorne v. Formula 1 Motorsports, Inc., No. 19-CV-1077, 2019 WL

6916098, at *2 (S.D.N.Y. Dec. 19, 2019); Andrews v. Blick Art

Materials, LLC, 268 F. Supp. 3d 381, 386 (E.D.N.Y. 2017).15 But

these cases rely heavily on Pallozzi. See, e.g., Winegard, 2021

WL 1198960, at *2 (“Following the Second Circuit’s decision in

Pallozzi[,] . . . many courts in this circuit, including this

one, have held that websites qualify as places of public

accommodation under the ADA.”).16 And as indicated above, I do

not read Pallozzi to dictate this conclusion.17

15 These observations in Thorne and Blick Art were dicta: both companies

did have physical facilities, so there was no need for these courts to decide

whether websites are “places of public accommodation” on a stand-alone basis.

See Thorne, 2019 WL 6916098, at *1 (Formula 1 “advertises, markets,

distributes, and sells boats and boating accessories at physical locations

located in New York”); Blick Art, 268 F. Supp. 3d at 386 (“Blick owns and

operates nationwide brick-and-mortar retail stores that sell art supplies.”).

16 The plaintiff in Winegard v. Crain Communications is the same

Winegard as in this case. By this Court’s count, Mr. Winegard had filed at

least forty-four ADA lawsuits in this district alone as of August 16, 2021.

17 These cases are actually expanding Pallozzi’s holding. And they do

so while offering no limiting principle for the expansion. Many of these

cases suggest that every website is a “place of public accommodation.” See,

e.g., Winegard, 2021 WL 1198960, at *2 (“Following [Pallozzi], . . . many

courts in this circuit, including this one, have held that websites qualify

as places of public accommodation under the ADA.”); Thorne, 2019 WL 6916098,

at *2 (“Following Pallozzi, multiple district courts in this circuit have

held that websites qualify as places of public accommodation under the ADA.

. . . This Court concurs.”). Absent some limiting principle, this would

mean that every operator of a website — every blogger, vlogger, and the like

— must provide closed captioning and any other accommodation required by the

ADA.

Some authorities suggest a possible limitation on this rule — namely,

that the ADA applies only to websites that offer “goods and services.” See,

In addition to relying on Pallozzi, some of these

cases invoke policy arguments — as the Plaintiff does here.

See, e.g., Scribd Inc., 97 F. Supp. 3d at 575 (“Now that the

Internet plays such a critical role in the personal and

professional lives of Americans, excluding disabled persons from

access . . . would defeat the purpose of this important civil

rights legislation.”). But “considerations of policy divorced

from the statute’s text and purpose could not override its

meaning.” United States v. Tohono O’Odham Nation, 131 S. Ct.

1723, 1731 (2011). And courts are perhaps especially ill-

equipped to make policy in the ADA context. See, e.g., George

v. Bay Area Rapid Transit, 577 F.3d 1005, 1012–13 (9th Cir.

2009) (expansive interpretations of ADA can be “problematic”

because “courts are ill-equipped . . . to make what amount to

engineering, architectural, and policy determinations as to

whether a particular design feature is feasible and desirable”)

(quoting Indep. Living Res. v. Oregon Arena Corp., 982 F. Supp.

698, 746 (D. Or. 1997)).

e.g., Del-Orden v. Bonobos, Inc., No. 17-CV-2744, 2017 WL 6547902, at *5

(S.D.N.Y. Dec. 20, 2017) (stating that following Pallozzi, “four district

courts in this Circuit . . . have each held . . . that Title III extends to

online fora offering goods and services”) (emphasis added)); 75 Fed. Reg.

43460-01 (July 6, 2010) (“The Department [of Justice] believes that [T]itle

III reaches the Web sites of entities that provide goods or services that

fall within the 12 categories of ‘public accommodations,’ as defined by the

statute and regulations.” (emphasis added)). But the textual basis for this

limitation in the ADA is unclear. Section 12182(a), for example, prohibits

discrimination not only in the enjoyment of goods and services, but also in

the enjoyment of the “facilities” and “privileges” of every place of public

accommodation.

Having dismissed the federal claims, I decline to

exercise supplemental jurisdiction over the state-law claims.

28 U.S.C. § 1367(c); see also Motorola Credit Corp. v. Uzan, 388

F.3d 39, 56 (2d Cir. 2004) (“[O]ur Court has held, as a general

proposition, that ‘if [all] federal claims are dismissed before

trial, . . . the state claims should be dismissed as well.’”

(emphasis omitted)).

III. Conclusion

The issue decided here is of course a matter of

significant importance for the deaf and hard-of-hearing

community, and also for almost any business that would develop

or maintain a website. In the end, this is an issue for

Congress to resolve, and Congress did so in 1990 when it

restricted the ADA’s application to the operation of physical

premises. For the foregoing reasons, the Defendant’s motion to

dismiss is granted. The Clerk of Court is respectfully directed

to enter judgment and close this case.

SO ORDERED.

/s Eric Komitee___________________

ERIC KOMITEE

United States District Judge

Dated: August 16, 2021

Brooklyn, New York