National Federation of the Blind et al v. Target Corporation
Filing
28
Memorandum in Opposition re 16 First MOTION to Dismiss Amended Complaint filed byNational Federation of the Blind, Bruce Frank Sexton, the National Federation of the Blind of California. (Attachments: # 1 Proposed Order Denying Target's Motion to Dismiss# 2 Request For Judicial Notice# 3 Declaration of Camilla L. Roberson# 4 Exhibit A# 5 Exhibit B# 6 Exhibit C)(Paradis, Laurence) (Filed on 6/12/2006)
National Federation of the Blind et al v. Target Corporation
Doc. 28 Att. 5
Case 3:06-cv-01802-MHP
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EXHIBIT B
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Hooks v. OKBridge, Inc.
Case 3:06-cv-01802-MHP
Document 28-6 No. 99-50891
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT HAROLD R. HOOKS, Plaintiff-Appellant v. OKBRIDGE, INC., Defendant-Appellee ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION BRIEF OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF APPELLANT BILL LANN LEE Acting Assistant Attorney General JESSICA DUNSAY SILVER KEVIN K. RUSSELL Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 305-4584 TABLE OF CONTENTS PAGE INTEREST OF THE UNITED STATES 1 STATEMENT OF THE ISSUES 1 STATEMENT OF THE CASE 2 SUMMARY OF ARGUMENT 4 ARGUMENT: I. A COMMERCIAL BUSINESS PROVIDING SERVICES SOLELY OVER THE INTERNET IS SUBJECT TO THE ADA'S PROHIBITION AGAINST DISCRIMINATION ON THE BASIS OF DISABILITY 6 A. The Language Of The Statute Does Not Limit Title III To Services Provided At A Company's Physical Facility 7
http://www.usdoj.gov/crt/briefs/hooks.htm
Hooks v. OKBridge, Inc.
Case 3:06-cv-01802-MHP 1. The Services "Of" A Place Of Public Accommodation Need Not Be Provided "At" The Place Of Public Accommodation 8 2. Definition Of "Public Accommodation" Is Not Limited To Entities Providing Services At Their Physical Premises 11 3. The Absence Of Specific Mention Of Services Provided Over The Internet Does Not Restrict The Statute's Coverage 16
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B. This Court Has Already Rejected The View That Title III Is Limited To Services Performed At A Physical Place 18 II. OKBRIDGE IS NOT A PRIVATE CLUB 20 CONCLUSION 23 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE -iTABLE OF AUTHORITIES CASES: PAGE Anderson v. Pass Christian Isles Golf Club, Inc., 488 F.2d 855 (1974) 23 Carparts Distribution Ctr., Inc. v. Automotive Wholesaler's Ass'n, 37 F.3d 12 (1st Cir. 1994) 7, 10 Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994) 7 Daniel v. Paul, 395 U.S. 298 (1969) 15, 20-21, 22 Dean v. Ashling, 409 F.2d 754 (5th Cir. 1969) 17 Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999), cert. denied, 120 S. Ct. 845 (2000) 7, 8
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Hooks v. OKBridge, Inc.
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Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998), cert. denied, 525 U.S. 1093 (1999) 7, 13 Hooks v. OKBridge, No. 99-214 (W.D. Tex. June 28, 1999) 3, 4 Hooks v. OKBridge, No. 99-214 (W.D. Tex. Aug. 4, 1999) 4, 6, 9, 22 Katz v. United States, 389 U.S. 347 (1967) 18 Louisiana Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483 (5th Cir. 1995) 21 McNeil v. Time Ins. Co., 205 F.3d 179 (5th Cir. 2000) passim Miller v. Amusement Enters. Inc., 394 F.2d 342 (5th Cir. 1968) 15-16 Olmstead v. United States, 277 U.S. 438 (1928) 18 Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (1999), amended on denial of reh'g en banc, 204 F.3d 392 (2d Cir. 2000) 7, 9 Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997) 7, 12 - ii CASES (continued): PAGE Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206 (1998) 17 Quijano v. University Fed. Credit Union, 617 F.2d 129 (5th Cir. 1980) 21 Reno v. ACLU, 521 U.S. 844 (1997) 8, 17 Smith v. YMCA, 462 F.2d 634 (5th Cir. 1972) 22 Stoutenborough v. National Football League, Inc.,
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Hooks v. OKBridge, Inc.
Case 3:06-cv-01802-MHP 59 F.3d 580 (6th Cir. 1995) 7
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Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969) 21 United States v. Richberg, 398 F.2d 523 (5th Cir. 1968) 21, 22 Welsh v. Boy Scouts of Am., 993 F.2d 1267 (7th Cir. 1993) 7 Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000) 7, 12, 13, 20 CONSTITUTIONS AND STATUTES: United States Constitution: Fourth Amendment 17 Americans With Disabilities Act (ADA), Pub. L. No. 101-336, 104 Stat. 327 (1990) 16 42 U.S.C. 12101(a)(5) 14 42 U.S.C. 12101(b)(4) 11 Title III: 42 U.S.C. 12181 et seq. 1 42 U.S.C. 12181(7) 3, 7 42 U.S.C. 12181(7)(B) 10 42 U.S.C. 12181(7)(C) 4, 8, 22 42 U.S.C. 12181(7)(E) 10, 13 42 U.S.C. 12181(7)(F) 4, 8, 10, 13 42 U.S.C. 12181(7)(H) 22 42 U.S.C. 12181(7)(I) 22 42 U.S.C. 12181(7)(J) 10 42 U.S.C. 12181(7)(K) 13 42 U.S.C. 12181(7)(L) 4, 8, 22, 23
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Hooks v. OKBridge, Inc.
Case 3:06-cv-01802-MHP 42 U.S.C. 12182 2 42 U.S.C. 12182(a) passim
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- iii STATUTES (continued): PAGE 42 U.S.C. 12182(b)(2)(A)(iv) 14 42 U.S.C. 12186(b) 1 42 U.S.C. 12187 4, 6, 20 42 U.S.C. 12188(b) 1 Civil Rights Act of 1964, Title II: 42 U.S.C. 2000a(b)(3) 16 42 U.S.C. 2000a(e) 20 REGULATIONS: 28 C.F.R. Pt. 36 1 LEGISLATIVE HISTORY: S. Rep. No. 116, 101st Cong., 1st Sess. (1989) 15 H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. (1990) 14, 17 H.R. Rep. No. 485, Pt. 3, 101st Cong., 2d Sess. (1990) 14, 15 MISCELLANEOUS: PBS, Life on the Internet Timeline (visited June 30, 2000) (first web browser invented, and first commercial use of the internet permitted, in 1991). That Congress did not specifically envision the application of Title III to services provided over the internet does not mean that such services are excluded from coverage. See, e.g., Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 211 (1998) (ADA applies to prisons, even if "Congress did not envision that the ADA would be applied to state prisoners") (citation and internal punctuation omitted); Dean v. Ashling, 409 F.2d 754, 755 (5th Cir. 1969) (Title II of the Civil Rights Act of 1964 applies to rental space in a trailer park, even though "[n]othing in the legislative history suggests that anyone considered trailer parks"). The language of the statute is broad enough to cover services provided over this new medium (9) and courts are not reluctant to apply old words to new technology in a way that is consistent with modern usage and legislative intent. The Supreme Court has, for example, applied the First Amendment's protection of free "speech" and "the press" to electronic communication over the internet. See Reno v. ACLU, 521 U.S. 844 (1997). In another example, the Fourth Amendment's protection of the "right of the people to be secure in their persons, houses, papers, and effects," U.S. Const. Amend. IV, has been applied to electronic documents and communications. At one time, the Supreme Court concluded that the language of this Amendment could not reach searches of new electronic media, such as telephone communications, for reasons very similar to those urged by Defendant in this case: The amendment itself shows that the search is to be of material things -- the person, the house, his papers, or his effects. The description of the warrant necessary to make the proceeding lawful is that it must specify the place to be search and the person or things to be seized. * * * * * The language of the Amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant's house or office. Olmstead v. United States, 277 U.S. 438, 464-465 (1928) (emphasis in original). However, the Supreme Court later rejected this restrictive interpretation and applied the Fourth Amendment to searches of electronic media, acknowledging the need to avoid restrictive interpretations that leave new technologies outside the protection of pre-existing law: To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication. * * * * [O]nce it is recognized that the Fourth Amendment protects people -- and not simply "areas" -- against unreasonable searches and seizures it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure. Katz v. United States, 389 U.S. 347, 352-353 (1967). Just as the Fourth Amendment's textual focus on physical intrusions does not exclude the Constitution's application to electronic media, neither does a similar textual focus in the ADA on services provided at a physical place of business exclude Title III from application to commercial services provided over the internet. B. This Court Has Already Rejected The View That Title III Is Limited To Services Performed At A Physical Place The district court's decision in this case not only ignores the plain language of the statute and the obvious purposes of Congress, but also conflicts with this Court's recent decision in McNeil v. Time Insurance Co., 205 F.3d 179 (5th Cir. 2000). In McNeil, this Court reviewed the decision of a district court that had concluded, like the district court in this case, "that Title III of that Act only applied to physical use of the services of a place of public accommodation." Id. at 182. The district court had granted summary judgment
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Hooks v. OKBridge, Inc.
Case 3:06-cv-01802-MHP
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against a plaintiff who claimed that a cap on AIDS coverage in his deceased son's insurance policy violated Title III. The district court held that the defendant's "provision of insurance did not constitute a 'public accommodation' under the ADA" because it did not involve physical access," siding with cases like Weyer, Parker, and Ford. Ibid. Had this Court agreed with the district court and sided with the Circuits inferring a "physical place" requirement in Title III, this Court would have affirmed the dismissal of the plaintiff's claim on the ground that the insurance policy was not a "service * * * of [a] place of public accommodation." Instead, this Court interpreted and applied Title III to the case, concluding that [t]he "good" in this case is the insurance policy that Time offered to the members of the Texas Optometric Association. To establish a Title III violation, Mr. McNeil is required to demonstrate that Time denied his son access to that good or interfered with his son's enjoyment of it. Id. at 188. Thus, while this Court ultimately concluded that Title III does not govern the content of insurance policies (because, as a general matter, Title III does not "regulate the content of goods and services that are offered," 205 F.3d at 186)(10) it nonetheless held that Title III "assures that the disabled have access to all goods and services offered by the business," even when that business offers goods or services, like insurance policies, that are provided outside the company's offices. Id. at 188 (emphasis added). In this case, this Court should similarly conclude that Title III requires that businesses like Defendant offer non-discriminatory access to all their services, whether they be provided in a building or over the internet. II. OKBRIDGE IS NOT A PRIVATE CLUB The district court also held that even if OKBridge is a public accommodation, it is exempt from Title III under 42 U.S.C 12187, which provides that "[t]he provisions of this subchapter shall not apply to private clubs * * * exempted from coverage under title II of the Civil Rights Act of 1964." The public accommodations provision of Title II, in turn, states that "[t]he provisions of this subchapter shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons [of a covered] establishment." 42 U.S.C. 2000a(e). An ordinary business open to all members of the public willing to pay for its services is not a "private club or other establishment not in fact open to the public." See Daniel v. Paul, 395 U.S. 298, 301 (1969); United States v. Richberg, 398 F.2d 523, 527-528 (5th Cir. 1968); see also Louisiana Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1494 & n.16 (5th Cir. 1995); cf. Quijano v. University Fed. Credit Union, 617 F.2d 129, 133 (5th Cir. 1980). But an ordinary business is exactly what OKBridge is. Like any profit-seeking business, OKBridge offers its services to anyone willing to pay the required fee (see Appellee Br. 22-23).(11) There is no evidence that OKBridge has ever declined an applicant for membership if accompanied by the required fee (see Appellee Br. 22-23). As a result, it has an enormous "membership" of more than 18,000 "members" in more than 90 countries on five continents (see Appellee Br. 20, 23). OKBridge does not allege that it has placed any limit on its membership. In fact, it admits (Appellee Br. 25) to seeking additional members through advertisements in bridge-related publications and on the internet. And Defendant does not allege that it has any formal selection process or any defined standards for selective admission, other than payment of the fee (see Appellee Br. 20-23). See Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 236 (1969) (private club must have a "plan or purpose of exclusiveness"). Moreover, like any other business, OKBridge is owned and operated by, and for the profit of, its owners, not its members (see Appellee Br. 25). That Defendant calls its customers "members" is irrelevant. See Daniel, 395 U.S. at 301-302. What matters is that OKBridge has "none of the attributes of self-government and
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Hooks v. OKBridge, Inc.
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member-ownership traditionally associated with private clubs." Id. at 301. That is, its "members" have no ownership stake or control over the business (see Appellee Br. 23-25). (12) See Smith v. YMCA, 462 F.2d 634, 648 (5th Cir. 1972) (no private club where the YMCA "is neither owned nor governed by its members"); Richberg, 398 F.2d at 527-528 (no private club where restaurant was run by the owner). The only reason the district court gave for concluding that Defendant was a private club was that Defendant's services only appeal to those who know how to play bridge. Hooks II, slip op. 8. If this were a sufficient reason to exempt Defendant, few public accommodations would be covered by the Act. Hardly any business offers a service that appeals to everyone. Many quintessential public accommodations provide services that, as a practical matter, will only be of benefit to a subset of the general population, such as those who know how to play golf, bowl, or swim. Yet golf clubs, bowling alleys, and swimming pools are all entities Congress specifically intended to cover. See 42 U.S.C. 12181(7)(L). "Defendant had the burden in the proceedings below of demonstrating its truly 'private' character." Anderson v. Pass Christian Isles Golf Club, Inc., 488 F.2d 855, 857 (5th Cir. 1974). Defendant in this case failed to sustain that burden. CONCLUSION This Court should reverse the district court's holding that Title III of the ADA does not apply to a commercial business providing services on the internet and its holding that OKBridge is exempt from the Act as a private club. Respectfully submitted, BILL LANN LEE Acting Assistant Attorney General JESSICA DUNSAY SILVER KEVIN K. RUSSELL Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 305-0025 CERTIFICATE OF COMPLIANCE Pursuant to 5th Cir. R. 32.2 and .3, the undersigned certifies that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B). 1. Exclusive of the exempted portions in 5th Cir. R. 32.2, the brief contains 5944 words and 701 lines of monospaced text. 2. The brief has been prepared in monospaced Courier Regular typeface using WordPerfect for Windows version 7, with 10 characters per inch (12 point type). 3. The undersigned understands that a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Fed. R. App. P. 32(a)(7), may result in the court's striking the brief and imposing sanctions against the person signing the brief. Kevin Russell
http://www.usdoj.gov/crt/briefs/hooks.htm
Hooks v. OKBridge, Inc.
Case 3:06-cv-01802-MHP Attorney Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 305-0025
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CERTIFICATE OF SERVICE I certify that two paper copies, and one electronic copy, of the foregoing Brief of the United States as Amicus Curiae in Support of Appellant were sent by overnight mail this 30th day of June, 2000, to the following counsel of record: Juanita C. Hernandez Eric J. Werner Jenkens & Gilchrist 1400 Frost Bank Tower San Antonio, TX 78205 Harold R. Hooks 10502 Arbor Bluff San Antonio, TX 78240 Kevin K. Russell Attorney 1. The United States takes no position on the other issues raised in this appeal. 2. References to "R__-__-__" are to the volume number and page number or page range of the record on appeal. 3. See, e.g., Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114-1115 (9th Cir. 2000); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-614 (3d Cir. 1998), cert. denied, 525 U.S. 1093 (1999); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1010-1014 (6th Cir. 1997); Stoutenborough v. National Football League, Inc., 59 F.3d 580, 582-583 (6th Cir. 1995); see also Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994) (application of Title II of the Civil Rights Act of 1964 to a membership group); Welsh v. Boy Scouts of Am., 993 F.2d 1267 (7th Cir. 1993) (same). 4. See Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32-33 (1999), as amended on denial of reh'g en banc, 204 F.3d 392 (2d Cir. 2000); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999), cert. denied, 120 S. Ct. 845 (2000); Carparts Distribution Ctr., Inc. v. Automotive Wholesaler's Ass'n, 37 F.3d 12, 19 (1st Cir. 1994). 5. A web site like Defendant's operates through the company's computers that connect via the internet to the computers of its customers. See generally Reno v. ACLU, 521 U.S. 844, 849-853 (1997). 6. Cf. Doe, 179 F.3d at 559 (7th Cir. 1999) (Posner, C.J.) ("The core meaning of this provision, 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 electronic space) 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.") (citations omitted) (emphasis added). 7. Moreover, even if physical access were the main concern of Congress in enacting the statute, "it does not follow that the scope of [the provision] should be restricted to the primary objects of Congress' concern when
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Hooks v. OKBridge, Inc.
Case 3:06-cv-01802-MHP
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a natural reading of its language would call for broader coverage." Daniel v. Paul, 395 U.S. 298, 307 (1969). 8. In Miller, the district court had concluded that an amusement park was not a "place of exhibition or entertainment" under Title II of the Civil Rights Act of 1964. See 42 U.S.C. 2000a(b)(3) (covering "any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment"). Relying on the same arguments presented in some of the ADA Title III cases, the district court reasoned that because all of the specific examples in that provision referred to businesses providing spectator, not participatory, entertainment, a place of recreation could not be a "place of * * * entertainment." This Court reversed, concluding that a broader construction was required by the language of the statute and the purposes of the Act. 394 F.2d at 350. 9. Cf. H.R. Rep. No. 485, Pt. 2, supra, at 108 ("Indeed, the Committee intends that the types of accommodation and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly changing technology of the times."). 10. On this point, this Court did agree with the alternative holdings in Weyer, Parker, and Ford. See McNeil, 205 F.3d at 188; Weyer, 198 F.3d at 1115. 11. And like any commercial service provider, such as a golf course or movie theater, OKBridge requires its customers to abide by basic rules of conduct and reserves the right to exclude those who do not. This fact does not render OKBridge a selective, private club; if it did, no business would be subject to Title III. 12. That the web site's customers can complain about the behavior of other patrons and, thereby, indirectly enforce the basic rules of the web site, does not mean the members exercise the sort of control over the business required to make it an exempt private club. Patrons of movie theaters, golf courses, bowling alleys, libraries, amusement parks, etc., can all complain about disruptive customers and often succeed in having the perpetrator removed or excluded from the facility. Yet Congress clearly considered that, as a general rule, each of these types of public accommodations would be covered by Title III. See 42 U.S.C. 12181(7)(C), (H), (I), (L).
http://www.usdoj.gov/crt/briefs/hooks.htm
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