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Access Now, Inc., et al. v. Southwest Airlines, Co.

227 F.Supp.2d 1312, Case No. 02-21734-CIV-Seitz/Bandstra (S.D.Fla., October 18, 2002)

Court holds that defendant Southwest Airlines Co.'s web site is not a "place of public accommodation" under Title III of the Americans with Disabilities Act, ("ADA") and accordingly that Southwest has no obligation under Title III to make its web site accessible to the visually impaired.  Title III of the ADA prohibits those who operate "places of public accommodation" from discriminating against individuals with disabilities.  The Court held that under the plain and unambiguous language of the ADA a "public accommodation must be a physical, concrete structure."  Because defendant's website was not such a structure, the Court dismissed plaintiffs' claims for relief under Title III of the ADA.

Defendant Southwest Airlines Co. ("Southwest") operates a website at the URL at which it sells airline tickets and provides information about flights and fares.  Plaintiff Access Now, Inc. ("Access") is a non-profit advocacy group for disabled individuals.  Claiming that Southwest's website is a "place of public accommodation," Access argued that Southwest was obligated under Title III of the ADA to take a number of steps to make its website accessible to the visually impaired.  More particularly, software has been developed to assist the visually impaired in their use of the Internet, including screen readers, voice dictation software, voice navigation software and magnification software.  Plaintiffs argued that Southwest violated the ADA by failing to incorporate technology into its website's design which would facilitate the use of screen reader programs by providing the "alternative text" needed for their operation.  Plaintiffs also sought to compel Southwest to provide a "skip navigation link" to assist the blind in navigating through Southwest's site.

On Southwest's motion, the Court dismissed plaintiffs' suit, finding that Title III of the ADA did not impose an obligation on Southwest to modify its website so as to accommodate the visually impaired.

Under Title III of the ADA, 42 U.S.C. § 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 by any person who owns, leases (or leases to) or operates a place of public accommodation.

42 U.S.C. § 12181(7) of the ADA identifies twelve categories of places that constitute "places of public accommodation."  The Attorney General has also issued regulations which further define a "place of public accommodation."  Both the relevant provisions of the ADA, and the regulations in question, are quoted at length in the Court's decision.  The court held that under the plain and unambiguous language of these provisions, a place of public accommodation is a "physical concrete structure."  As such, the statute did not apply to defendant's website.  Said the Court:

[T]o fall within the scope of the ADA … a public accommodation must be a physical, concrete structure.  To expand the ADA to cover 'virtual' spaces would be create new rights without well-defined standards.

In reaching this conclusion, the court rejected plaintiffs' argument that by including "other places of exhibition," "other sales . . . establishments" or "other place[s] of public display" in the definition of "places of public accommodation" the statute was applicable to web sites.  Such an interpretation of the statutory language was barred by application of the doctrine of "ejusdem generis," as the general words relied upon by plaintiffs all followed specific examples of covered accommodations, each of which was a physical, concrete structure.  Said the court:

Here, the general terms, "exhibition," "display," and "sales establishment," are limited to their corresponding specifically enumerated 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," respectively. 42 U.S.C. §§ 12181(7)(C), (H) & (E).  Thus, this Court cannot properly construe "a place of public accommodation" to include Southwest's Internet website,

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