H. v. Just for Kids of Utah County
MEMORANDUM DECISION AND ORDER GRANTING 12(b)(6) 6 MOTION TO DISMISS. Signed by Judge Jill N. Parrish on 3/30/17. (ss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
J.H., by and through her legal guardian, Pam
MEMORANDUM DECISION AND
ORDER GRANTING 12(b)(6) MOTION
Case No. 2:16-cv-00358-JNP-DBP
JUST FOR KIDS, INC.,
District Judge Jill N. Parrish
Before the court is a Motion to Dismiss filed by Defendant Just for Kids, Inc. pursuant to
Fed. R. Civ. P. 12(b)(6). (Docket No. 6). Defendant asks this court to dismiss Plaintiff J.H.’s
complaint under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181, et
seq., because, inter alia, it is not subject to the prohibitions of the ADA. Recounted below are
Plaintiff’s well-pleaded allegations, which the court accepts as true and construes in the light
most favorable to the Plaintiff. See Cressman v. Thompson, 719 F.3d 1139, 1152 (10th Cir. 2013)
(requiring this approach at the motion-to-dismiss stage).
Plaintiff is an individual with Down syndrome, a genetic disorder that is often associated
with developmental delays and some level of intellectual disability. 1 Plaintiff also has diabetes
mellitus type 1, which she treats through the use of an insulin pump that regulates her blood
glucose level. In order to properly manage her diabetes, Plaintiff must regularly monitor her
blood glucose level through self-administered blood samples.
Due to her mental capacity and intellectual disability, Plaintiff’s interests are represented in this action by her
mother and legal guardian, Pam Holman.
Defendant is a non-profit corporation based in the State of Utah that administers the
Habilitation Independence Vocation Education Socialization (“HIVEs”) program. According to
Plaintiff, Defendant uses “its own vans” to provide “educational activity services and
transportation services . . . to adult individuals with intellectual disabilities.” (Docket No. 2, at 3).
The complaint suggests that the HIVEs program involves supervision and instruction of a group
of participants by “HIVEs instructors” or “teachers.” (See id., at 4). In a letter to Plaintiff
referenced in the complaint, 2 Defendant describes the HIVEs program as follows:
HIVEs is an educational activity program for adults with disabilities. The
mission statement of HIVEs is to promote independent life skills and provide
opportunities for adults with disabilities to build self-determination by providing,
among other things, a safe, independence-oriented environment for people with
disabilities as well as affordable community-based respite for parents of children
with disabilities. HIVEs accomplishes these objectives by exposing its
participants to various community resources and activities such as swimming at
the Lehi Legacy Center, eating out, going to the library, participating in physical
fitness activities at the American Fork City recreation center, visiting homes for
the elderly, and other activities.
HIVEs does not own any real estate. It does not have a school or similar
facility of its own. It operates by picking up program participants from their
homes in HIVE[s]-owned vans, which transport them to the various planned
activities for the day, and then return them home at the end of the day.
This document was submitted to the court as an exhibit to Defendant’s Motion to Dismiss. (Docket No. 6-7).
However, the court’s consideration of this letter here does not convert this Motion under Rule 12(b)(6) into a
summary judgment motion under Rule 56. “Generally, a court considers only the contents of the complaint when
ruling on a 12(b)(6) motion[,]” Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1146 (10th Cir. 2013), but where a
complaint refers to a document that is “central to the plaintiff’s claim” and neither party disputes its authenticity, the
contents of that document may also be considered, see GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381,
1384–85 (10th Cir. 1997) (“[I]f a plaintiff does not incorporate by reference or attach a document to its complaint,
but the document is referred to in the complaint and is central to the plaintiff’s claim, a defendant may submit an
indisputably authentic copy to the court to be considered on a motion to dismiss.”). Here, the complaint explicitly
refers to the letter and its contents as part of its factual allegations of discrimination and invokes the letter’s contents
as evidence that Defendant did not properly conduct an “objective, individualized assessment” of the risks posed by
Plaintiff’s continued participation in the HIVEs program. (See Docket No. 2, at 5 ¶ 20, 7 ¶ 30). Thus, the letter
supports Plaintiff’s argument that Defendant denied her participation in the program because of her diabetes and is
“central” to her claim that Defendant failed to individually assess the reasonableness of her accommodation request.
See Berneike, 708 F.3d at 1146; GFF Corp., 130 F.3d at 1384–85. More importantly, because it “reaffirm[s] . . . the
denial of access” to the HIVEs program as a result of her diabetes and associated complications, (Docket No. 9, at
5), the letter likely constitutes the operative denial of reasonable accommodation in and of itself. Finally, neither
party disputes the authenticity of the letter and both parties repeatedly cite to it in their filings with the court. (See,
e.g., Docket No. 9, at 17, 19). Accordingly, the court finds that the letter is appropriately considered in ruling on
Defendant’s Rule 12(b)(6) motion.
(Docket No. 6-7, at 3).
Plaintiff has participated in the HIVEs program for approximately ten years. In March of
2016, Plaintiff’s mother contacted the director of Defendant and the HIVEs program, Michelle
Holbrook, to report her concerns regarding the safety of Plaintiff during her regular blood
glucose checks. Plaintiff’s mother was primarily concerned that HIVEs instructors were allowing
Plaintiff to check her blood glucose levels away from the other participants and without adequate
supervision. Ms. Holbrook relayed these concerns to the instructors who supervised Plaintiff’s
participation in the program and requested a face-to-face meeting with Plaintiff’s parents to
further discuss “safety and supervision” in the program. However, just prior to the planned
meeting, Ms. Holbrook e-mailed Plaintiff’s mother and indicated that Plaintiff’s “medical needs
are beyond the ability of HIVEs instructors to manage.” (Docket No. 2, at 4). Ms. Holbrook
informed Plaintiff’s mother that their planned meeting was cancelled and that Plaintiff would not
be allowed to participate in the program after April 1, 2016.
Shortly after this exchange, Plaintiff’s mother contacted Defendant through counsel,
arguing that Defendant’s exclusion of Plaintiff from the HIVEs program violated Title III of the
ADA and specifically requesting that Plaintiff be allowed to reenter the program. Defendant
responded through counsel that Title III’s prohibitions were not applicable to the HIVEs program
and that the program simply could not accommodate Plaintiff’s needs. Plaintiff has not
participated in the HIVEs program since April 1, 2016.
Plaintiff, through her mother and legal guardian, filed a complaint against Defendant on
May 2, 2016, alleging that Defendant’s conduct in excluding her from the HIVEs program
violated Title III of the ADA and requesting declaratory and injunctive relief. (Docket No. 2). On
May 31, 2016, Defendant filed the instant Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6),
arguing that Plaintiff’s complaint failed to state a claim under Title III. (Docket No. 6). Plaintiff
filed a memorandum in opposition to Plaintiff’s Motion on July 7, 2016. (Docket No. 9).
Defendant filed a reply on July 21, 2016. (Docket No. 10). The court held oral argument on the
Motion on October 3, 2016. (Docket No. 16). After oral argument, the court ordered
simultaneous supplemental briefing on whether the prohibitions of Title III extended beyond
physical places and whether the HIVEs program fell within those prohibitions. (Docket No. 15).
Plaintiff and Defendant each submitted a supplemental memorandum on October 17, 2016.
(Docket Nos. 19, 20). Each party also submitted a reply to these memoranda on October 24,
2016. (Docket Nos. 21, 22). The court now considers the arguments of the parties under
jurisdiction granted by 28 U.S.C. § 1331.
The ADA was enacted “in 1990 to remedy widespread discrimination against disabled
individuals.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674, 121 S.Ct. 1879 (2001). Title III of the
ADA prohibits discrimination “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). A private entity is considered a “public
accommodation” if 1) its operations affect commerce and 2) the entity or its facilities fall into
one of twelve general definitional categories. See § 12181(7). Each definitional category includes
several enumerated examples of qualifying entities, but these examples “aren’t exhaustive; rather
they serve as mere illustrations” of the category itself. See Levorsen v. Octapharma Plasma, Inc.,
828 F.3d 1227, 1230 (10th Cir. 2016) (internal citation omitted). Moreover, because Title III of
the ADA is a remedial measure, this court “must construe § 12181(7) liberally to afford
individuals with disabilities access to the same establishments available to those without
disabilities.” See id. (citing PGA Tour, 532 U.S. at 676–77 and Trainor v. Apollo Metal
Specialties, Inc., 318 F.3d 976, 983 (10th Cir. 2002)). Nevertheless, an entity or its facilities must
fall within at least one of the general categories listed in § 12181(7) in order to be subject to the
prohibitions of § 12182. See U.S. Dep’t of Justice, ADA Title III Technical Assistance Manual
Covering Public Accommodations and Commercial Facilities § III-1.2000,
www.ada.gov/taman3.html (last visited Mar. 29, 2017) (“Can a facility be considered a place of
public accommodation if it does not fall under one of these 12 categories? No, the 12 categories
are an exhaustive list.”); 28 C.F.R. 36, app. C, at 893 (“In order to be a place of public
accommodation, a facility . . . must fall within one of these 12 categories. While the list of
categories is exhaustive, the representative examples of facilities within each category are not.”).
Here, Plaintiff argues that the HIVES program falls “squarely within at least two of the
established Title III categories of ‘public accommodation.’” 3 (See Docket No. 9, at 3 n.1
(emphasis omitted)). Plaintiff first asserts that the HIVES program can be properly categorized
as a “place of education” under 42 U.S.C. § 12181(7)(J), which construes “a nursery, elementary,
secondary, undergraduate, or postgraduate private school, or other place of education” as a
“public accommodation” for purposes of Title III. In the alternative, Plaintiff insists that the
HIVES program may be categorized as a “social service center establishment” under subsection
(7)(K). § 12181(7)(K) (defining as a “public accommodation” any “day care center, senior
In her complaint, Plaintiff also alleged that the HIVES program may also be classified as a “demand responsive
service” under § 12181(3), but only lightly defends that proposition in briefing. The court will address this allegation
more fully below.
Additionally, there appears to be some confusion as to whether Defendant itself or the HIVEs program is alleged to
be the operative “place of public accommodation” under § 12182(a). The court believes that the best reading of the
complaint alleges that Defendant is a “private entity” that administers the HIVEs program, which is itself alleged to
be a public accommodation under Title III. See § 12182(a). This reading of the complaint is in keeping with
Plaintiff’s argument in response to the Motion to Dismiss. (See Docket No. 9, at 3 n.1).
citizen center, homeless shelter, food bank, adoption agency, or other social service center
establishment”). Defendant responds that the HIVES program is not a “place of public
accommodation” under § 12182(a) because it is not a “place” at all, but a program. (Docket No.
10, at 3 n.3). To determine whether the HIVES program may be properly categorized as a “place
of education” or a “social service center establishment,” the court must first decide whether Title
III’s definition of “public accommodation” is restricted to physical places. As explained below,
the court concludes that Title III’s definition is so restricted.
Section 12182(a)’s prohibitions are restricted to physical “place[s] of public
Plaintiff urges that Title III’s definition of “public accommodation” is not restricted to
physical places, (Docket No. 19, at 2–6), and invites the court to adopt the reasoning of the First,
Second, and Seventh Circuits, which have each held that Title III’s prohibitions extend beyond
physical places, see Carparts Distribution Ctr., Inc. v. Auto. Wholesalers’ Ass’n of New Eng.,
Inc., 37 F.3d 12, 18–20 (1st Cir. 1994) (holding Title III’s definition of “public accommodation”
was not limited to physical structures, and therefore encompassed a health benefits plan);
Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 31–33 (2d Cir. 1999) (holding Title III’s
prohibitions apply to insurance underwriting practices); Morgan v. Joint Admin. Bd., Retirement
Plan of the Pillsbury Co. & Amer. Fed. of Grain Millers, 268 F.3d 456, 459 (7th Cir. 2001)
(indicating that “public accommodation” under Title III was not limited to a “physical site” and
therefore could extend to the terms of a retirement plan). These Circuits concluded that the
physical “site” of service “is irrelevant to Congress’s goal of granting the disabled equal access
to sellers of goods and services.” See Morgan, 268 F.3d at 459. The First Circuit, for example,
found that the inclusion of “travel service” in § 12181(7)’s list of examples of public
accommodations indicated that Title III reached beyond physical structures, reasoning that
“[m]any travel services conduct business by telephone or correspondence without requiring their
customers to enter an office in order to obtain their services.” Carparts, 37 F.3d at 19. Restricting
the definition of “public accommodation” to physical structures or places would exclude such
transactions from the prohibitions of Title III and thereby “severely frustrate Congress’s intent
that individuals with disabilities fully enjoy the goods, services, privileges, and advantages,
available indiscriminately to other members of the general public.” See id. at 20. The court
explained: “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.” Id. at 19.
Citing the remedial function of the ADA and the general mandate to interpret such measures
liberally, see Levorsen, 828 F.3d at 1230 (citing PGA Tour, 532 U.S. at 676–77 and Trainor, 318
F.3d at 983), Plaintiff invites this court to adopt a similar line of reasoning and hold that Title
III’s prohibitions extend beyond physical places.
This court declines Plaintiff’s invitation and instead sides with the Third, Fifth, Sixth, and
Ninth Circuits, which have each held that Title III’s definition of “public accommodation” is
restricted to “actual, physical places.” See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d
1104, 1114 (9th Cir. 2000); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010–14 (6th Cir.
1997); Ford v. Schering-Plough Corp., 145 F.3d 601, 612–14 (3d Cir. 1998); Magee v. CocaCola Refreshments USA, Inc., 833 F.3d 530, 534 & 534 n.23 (5th Cir. 2016). As many of these
Circuits have noted, the reasoning undergirding the First, Second, and Seventh Circuits’
expansive interpretation of the term “public accommodation” does not square with the plain text
of the statute. See Parker, 121 F.3d at 1014; Ford, 145 F.3d at 614; Magee, 833 F.3d at 534 n.23.
Section 12182(a) explicitly prohibits discrimination on the basis of disability in connection with
“any place of public accommodation.” § 12182(a) (emphasis added). Any interpretation that
extends the prohibition beyond physical places would render this statutory text utterly
superfluous. See Ford, 145 F.3d at 612; cf. Clegg v. Cult Awareness Network, 18 F.3d 752, 755
(9th Cir. 1994) (“To conclude . . . that Title II [of the Civil Rights Act of 1964] covers
organizations having no affiliation with any public facility would be tantamount to finding that
an organization is a ‘place.’ Such an interpretation would be at odds with the express language of
the statute.”); Welsh v. Boy Scouts of Am., 993 F.2d 1267, 1272 (7th Cir. 1993) (“To conclude that
Title II includes membership organizations . . . , one would have to assume that Congress’ use of
the term ‘place’ was mere surplusage in the statute, and that the fifteen specific examples of
places fail to illuminate the meaning of the term ‘place’.”). Moreover, each example and
category of “public accommodation” listed in § 12181(7) is a physical place. See Ford, 145 F.3d
at 612–13; id. at 614 (“The litany of terms [in § 12181(7)], including ‘auditorium,’ ‘bakery,’
‘laundromat,’ ‘museum,’ ‘park,’ ‘nursery,’ ‘food bank,’ and ‘gymnasium’ refer to places with
resources utilized by physical access.”); Weyer, 198 F.3d at 1114 (“All of the items on [§
12181(7)’s list of public accommodations] . . . are actual, physical places where goods or
services are open to the public, and places where the public gets those goods or services.”). Even
the term “travel service,” which so concerned the First Circuit, must be interpreted as a physical
place when read in the context of the other enumerated categories and illustrative examples of
public accommodations. See, e.g., § 12181(7)(F) (defining “public accommodation” as “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 healthcare provider, hospital or other service establishment” (emphasis
added)); Ford, 145 F.3d at 614 (“Pursuant to the doctrine of noscitur a sociis, the terms that the
First Circuit finds ambiguous should be interpreted by reference to the accompanying words of
the statute ‘to avoid the giving of unintended breadth to the Acts of Congress.’” (quoting Jarecki
v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S. Ct. 1579 (1961))); Parker, 121 F.3d at 1014
(same); Magee, 833 F.3d at 534 n.23 (same). In short, “[t]he plain meaning of Title III is that a
public accommodation is a place,” Ford, 145 F.3d at 612, and “[e]very term listed in § 12181(7) .
. . is a physical place open to physical access,” 4 see Parker, 121 F.3d at 1014. Accordingly, this
court finds that Title III’s prohibitions do not extend beyond actual, physical places of public
In so ruling, the court acknowledges the “sweeping” remedial purpose of the ADA, see
PGA Tour, 532 U.S. at 675, but concludes that the law’s remedial purpose cannot overcome its
plain meaning as written, see Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 171, 127 S.Ct. 799
(2007) (“[A] statute’s remedial purpose cannot compensate for the lack of a statutory basis.”);
Rodriguez v. United States, 480 U.S. 522, 526, 107 S.Ct. 1391 (1987) (“[I]t frustrates rather than
effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary
objective must be the law.”); Symons v. Chrysler Corp. Loan Guarantee Bd., 670 F.2d 238, 241
(D.C. Cir. 1981) (“The fact that legislation has a remedial purpose, however, does not give the
And, as noted by the Third Circuit, Ford, 145 F.3d at 613, this interpretation of Title III comports with established
interpretations of analogous provisions of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a (prohibiting
racial, religious, and ethnic discrimination in access to the “goods, services, facilities, privileges, advantages, and
accommodations of any place of public accommodation”), restricting that statute’s prohibitions to physical places,
see Welsh, 993 F.2d at 1269–75 (holding that Title II’s prohibitions did not extend “to membership organizations
that do not maintain a close connection to a structural facility”); Clegg, 18 F.3d at 755–56 (same).
Plaintiff’s reliance on the Department of Justice’s briefing on the issue in other cases is unavailing. (See Docket
No. 22, at 2–4). Insofar as the Department’s interpretation of Title III negates the plain statutory requirement of an
associated physical place, the court rejects the interpretation as “manifestly contrary” to the plain meaning of the
statute. See Ford, 145 F.3d at 613 (quoting Chevron U.S.A., Inc. v. Nat. Res. Defense Council, 467 U.S. 837, 844,
104 S. Ct. 2778 (1984)) (internal quotations omitted).
judiciary license, in interpreting a provision, to disregard entirely the plain meaning of the words
used by Congress.”).
HIVEs is not a “place of public accommodation” under § 12181(7).
Given the definition of “places of public accommodation” explained above, the court
must conclude that the HIVEs program, in and of itself, is not a “place of public
accommodation” under Title III. However, this conclusion does not end the court’s analysis
because Plaintiff asserts that the HIVES program may still be considered a “place of public
accommodation” insofar as it is associated with certain physical locations and equipment. This
argument appears to be based on the premise that an organization, not considered a “place of
public accommodation” in and of itself, may nonetheless be considered as such if it “maintains a
close connection to a structural facility” that may be classified as a place of public
accommodation. Cf. Welsh, 993 F.2d at 1269 (interpreting a similar provision of Title II of the
Civil Rights Act of 1964); see also Ganden v. Nat’l Collegiate Athletic Ass’n, 1996 WL 680000
at *9–*10 (N.D. Ill. Nov. 21, 1996) (unpublished) (analyzing the applicability of Welsh to Title
III of the ADA). Here, Plaintiff argues that the HIVEs program has a “close connection” to
several physical locations or facilities that could make it a “place of public accommodation”
under Title III. Specifically, Plaintiff asserts that 1) the program makes use of various places of
public accommodation to administer its program; 2) Defendant maintains its headquarters at a
physical location; and 3) the program makes use of vans to transport participants to and from
educational activities. The court will address each argument in turn.
A. Places of public accommodation visited by the HIVEs program.
Plaintiff first asserts that the HIVEs program takes participants to various locations which
are clearly considered “place[s] of public accommodation” under Title III, such as community
swimming pools, recreation centers, restaurants, libraries, and homes for the elderly. See 42
U.S.C. § 12181(7). She insists that these interactions with public accommodations may nudge
the HIVEs program itself into the category of a “place of public accommodation.” The court
disagrees. First and foremost, Plaintiff’s complaint does not mention these locations at all, let
alone suggest that they could form the basis of liability under Title III. See Cty. of Santa Fe v.
Pub. Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002) (explaining that a district court
deciding a Rule 12(b)(6) motion may consider only facts alleged within the complaint, legal
argument, and properly referenced documents). But even if the court were to recognize the
existence of these locations from the letter referenced by the complaint, § 12182(a) only
prohibits discrimination by a private entity who “owns, leases (or leases to), or operates a place
of public accommodation.” See § 12182(a). Plaintiff’s complaint does not suggest that Defendant
“owns, leases . . . , or operates” any of the places of public accommodation the HIVEs program
visits. In fact, the most reasonable inference from the program description in the letter is that the
HIVEs program utilizes these public and community resources just like any other group of
customers or member of the general public, i.e., without any kind of ownership, lease
relationship, or operational role. See Elitt v. U.S.A. Hockey, 922 F. Supp. 217, 223 (E.D. Mo.
1996) (finding no evidence that youth hockey league owned, operated, or leased an associated
ice rink used for practices); cf. Jensen v. United First Fin., 2009 WL 5066683, at *3–*7 (D. Utah
Dec. 16, 2009) (unpublished) (holding that a private entity was a public accommodation under
Title III because it rented space in hotel rooms to conduct seminars and exercised sufficient
control over the rented space). Without an allegation that Defendant “owns, leases . . . , or
operates” these facilities and locations, the mere fact that the HIVEs program visits these places
cannot make the program a place of public accommodation under Title III.
B. Defendant’s physical headquarters.
Plaintiff next asserts that Defendant’s headquarters are an associated physical location
that suffices to make the HIVEs program a “place of public accommodation.” Here too, the court
disagrees. Again, neither the complaint nor the documents referenced in the complaint allege the
existence or function of Defendant’s physical headquarters. This alone is enough to reject
Plaintiff’s argument. See Cty. of Santa Fe, 311 F.3d at 1035 (explaining that a district court
deciding a Rule 12(b)(6) motion may consider only facts alleged within the complaint, legal
argument, and properly referenced documents).
But even if the court were to consider the argument, Plaintiff has failed to demonstrate a
sufficient “nexus” between Defendant’s headquarters and the services or benefits allegedly
denied to Plaintiff. See Parker, 121 F.3d at 1011 (“There is . . . no nexus between the disparity in
benefits [provided to the plaintiff] and the services which [defendant] offers to the public from its
insurance office.”); Weyer, 198 F.3d at 1114–15 (explaining that the terms of Title III “suggest
that some connection between the good or service complained of and an actual physical place is
required”); Ford, 145 F.3d at 613 (“[Plaintiff] cannot point to the terms [of Title III] as
providing protection from discrimination unrelated to places.”); Shepherd v. U.S. Olympic
Committee, 464 F. Supp. 2d 1072, 1084 (D. Colo. 2006) (“[T]he benefits Plaintiffs seek relate
less to the USOC’s physical facilities than to the teams they put forth for international
Instructive here is Parker, where the Sixth Circuit held that an allegedly discriminatory
benefits plan was not a “place” of public accommodation solely because the private entity that
issued the plan maintained an insurance office open to the public. See 121 F.3d at 1011. Because
the benefit plan was obtained through the plaintiff’s employer, not through the insurance office
itself, “there [was] . . . no nexus between the disparity in benefits and the services which [the
defendant] offers to the public from its insurance office.” See id. Here, there is no indication
from Plaintiff’s argument, her complaint, or any documents referenced therein that Defendant’s
physical headquarters offers any services or benefits to the general public, let alone the services
or benefits that Plaintiff claims she was denied. In short, the fact that Defendant maintains a
physical headquarters does not make the HIVEs program a place of public accommodation.
C. The HIVEs program’s vans.
Finally, Plaintiff asserts that the HIVEs program’s use of vans in administering its
program is sufficient to make it a “place of public accommodation.” Specifically, Plaintiff argues
that the vans are an associated physical place that allows HIVEs to be categorized as either a
“place of education” under § 12181(7)(J) or a “social service center establishment” under §
12181(7)(K). 6 As explained below, the court disagrees.
To evaluate whether HIVEs and its vans may be properly categorized as either a “place of
education” or a “social service center establishment” the court begins with the plain language of
§ 12181(7)(J), (K). See Levorsen, 828 F.3d at 1231. There is little dispute between the parties
that HIVEs provides “education” and “social service[s]” to its clients. Therefore, the court need
only decide whether the program, together with its associated vans, is a “place of education” or a
Though Plaintiff has only cursorily argued the point here, her complaint also alleges that the HIVEs program may
be classified as a “demand responsive system” under § 12181(3). Whether or not the HIVEs program qualifies as a
“demand responsive system” under the broad statutory definition of that phrase, § 12182(a) only applies to such
systems in connection with “places of public accommodation,” as explained in more depth below. See Ramos v.
Uber Tech., Inc., 2015 WL 758087 at *5 (W.D. Tex. Feb. 20, 2015) (unpublished) (analyzing the distinction
between demand responsive systems subject to § 12182(a) and those subject to § 12184(a)); § 12182(b)(2)(C)
(requiring private entities that are subject to § 12182(a), i.e., those that own, operate, or lease a place of public
accommodation, and operate a demand responsive system to provide an equivalent level of service to the disabled).
As Plaintiff has failed to allege any associated place of public accommodation, the court rejects Plaintiff’s argument
that the HIVEs program is subject to § 12182(a) because it is a “demand responsive system.” Demand responsive
systems divorced from any place of public accommodation are governed by the prohibitions of § 12184(a), which is
not alleged as a basis of liability in Plaintiff’s complaint. Moreover, that section applies only to “private entit[ies]
that [are] primarily engaged in the business of transporting people[,]” see § 12184(a) (emphasis added)— a
requirement that does not readily apply to Defendant.
“social service center establishment” under Title III. Neither term is defined in the statute.
However, the plain or ordinary meaning of these terms may be discerned by resort to “commonly
accepted dictionary definitions.” See In re Hamilton Creek Metro. Dist., 143 F.3d 1381, 1385
(10th Cir. 1998). To resolve ambiguity arising from “several workable definitions” of a general
statutory term, the court looks to the surrounding language of the statute to derive contextual
meaning. See United States v. Brune, 767 F.3d 1009, 1022–23 (10th Cir. 2014); Levorsen, 828
F.3d at 1231 n.4. Using this interpretive framework, the court will first address the definition of
“place of education” and then the definition of “social service center establishment.”
1. Place of Education
First, Plaintiff asserts that the HIVEs program may be generally categorized as a “place
of education” under § 12181(7)(J). Upon evaluating the plain meaning of that general term, the
A “place” can be defined loosely as a “space [or] room” or more narrowly as “a building
or locality used for a special purpose.” The Merriam-Webster Dictionary 548 (2016) [hereinafter
Merriam-Webster]. Applying these definitions in this context results in a slight ambiguity since a
van or other vehicle could conceivably be categorized as a “space,” but is likely not “a building
or locality.” The court therefore turns to the surrounding context of the statutory term for clarity.
See Levorsen, 828 F.3d at 1231 n.4 (quoting Brune, 767 F.3d at 1022) (allowing courts to look to
canons of construction and context to determine plain meaning where “multiple dictionary
definitions ‘preclude an obvious, unitary usage’”).
Because the general term “place of education” follows a list of specific examples, see §
12181(7)(J), the canon of ejusdem generis—which holds that “when ‘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 preceding specific words’”—is
especially helpful here, see Brune, 767 F.3d at 1023 (quoting Circuit City Stores, Inc. v. Adams,
532 U.S. 105, 114–15, 121 S. Ct. 1302 (2001)). Each of the specific examples listed under §
12181(7)(J) (“a nursery, elementary, secondary, undergraduate, or postgraduate private school”)
is a “building or locality” and not simply a “space [or] room.” 7 Therefore, under the canon of
ejusdem generis, these specific terms clearly indicate that the general term “place of education”
refers to a “building or locality” that provides educational services. See Magee, 833 F.3d at 534
(applying the principle of ejusdem generis to define the term “sales establishment” in §
With this definition of the general term in mind, it is clear that HIVEs is not a “place of
education” as that phrase is used in § 12181(7)(J). Though the program provides educational
services, neither the program itself nor the vans it uses can be reasonably categorized as
“building[s] or localit[ies]” as those terms relate to § 12181(7)(J)’s use of the general term “place
of education.” Therefore, the court rejects Plaintiff’s argument and holds that HIVEs is not a
“place of education” under § 12181(7)(J).
2. Social Service Center Establishment.
Next, Plaintiff argues that HIVEs may be generally categorized as a “social service center
establishment” under § 12181(7)(K). Again, the court disagrees.
An “establishment” is commonly defined as a “‘place of business’ or ‘a public or private
institution ([such] as a school or hospital).’” Levorsen, 828 F.3d at 1231 (alterations in original)
(quoting Webster’s Third New International Dictionary 778 (2002)); see also Magee, 833 F.3d at
534–35 (tracking a substantively identical definition of “establishment” through multiple
These examples also limit the meaning of “locality” to a physical location, such as a structural facility.
dictionaries). The Supreme Court has explained that the term “establishment” is “normally used
in business and in government . . . as meaning a distinct physical place of business.” A.H.
Phillips, Inc. v. Walling, 324 U.S. 490, 496, 65 S. Ct. 807 (1945). However, the term at issue here
is “social service center establishment,” § 12181(7)(K) (emphasis added), which suggests that
the term refers to public or private institutions that provide social services rather than places of
business. And the inclusion of the term “center”—defined as a “a place where a particular
activity or service is concentrated[, such as] a medical center”—suggests that the institution at
issue must be housed in a physical structure or location or at least administer social services from
a physical structure or location. 8 See The American Heritage Dictionary (Third Ed.) 310 (1992)
[hereinafter American Heritage]; see also Webster’s Third New International Dictionary 362
(1971) [hereinafter Webster’s Third] (defining “center” as “a concentration of requisite facilities
for an activity, pursuit, or interest, along with various likely adjunct conveniences” and giving
examples of a shopping center, medical center, or amusement center). Combining these various
definitions, the court concludes that the general term “social service center establishment” as
used in § 12181(7)(K) is a physical location or structure owned or operated by an institution in
order to administer social services.
Again, applying this definition of the general term, the court concludes that HIVEs is not
a “social service center establishment” under § 12181(7)(K). While the program could
conceivably be considered an institution that deals in social services, it lacks an associated fixed
Again, as described above, a “place” is best defined in this context as a “building or locality used for a special
purpose.” Merriam-Webster at 548. Additionally, while an “institution” may conceivably encompass either a nonphysical organization or perhaps a non-fixed physical location, see Merriam-Webster at 376 (defining “institution”
as “a society or corporation esp. of a public character”), the court concludes that an “institution” in this context is
best defined as an entity that owns or operates a location or structure that provides social services. This owes to the
inclusion of the word “center,” as described above. Additionally, in defining “establishment” as that term is used in
§ 12181(7), the Tenth Circuit cites fixed, physical structures (“a school or hospital”) as examples of the term
“institution.” See Levorsen, 828 F.3d at 1231.
physical location or structure. Further, the vans the programs utilizes cannot be considered a
“center” or “establishment” under § 12181(7)(K). Insofar as those terms are ambiguous enough
to encompass a van or other vehicle, the application of ejusdem generis again removes any
ambiguity: all of the specific examples preceding the general term “social service center
establishment” in § 12181(7)(K) (“a day care center, senior citizen center, homeless shelter, food
bank, adoption agency”) are plainly fixed structures, buildings, or groupings of facilities that
provide social services. The court notes that these specific statutory examples align with
examples provided to explain the common, ordinary meaning of the term “center” cited above,
including “medical center,” American Heritage at 310, “shopping center,” or “amusement
center,” Webster’s Third at 362. Though the HIVEs program may provide social services, neither
the program nor its vans can be construed as fixed structures, buildings, or groupings of
facilities. 9 Therefore, the court holds that HIVEs is not a “social service center establishment”
for purposes of § 12181(7)(K).
Based on the foregoing, the court concludes that HIVEs cannot be construed as either a
“place of education” under § 12181(7)(J) or a “social service center establishment” under §
12181(7)(K). The court notes that this conclusion—that neither the HIVEs program nor its vans
Plaintiff cites to DOJ regulations that 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 statutory] categories” of
public accommodations. 28 C.F.R. § 36.104. “[F]acility[,]” in turn, is defined under the regulations 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.” Id. Plaintiff argues that the HIVEs program’s vans may be categorized as a
“facility” under the regulation because they are “equipment” or “personal property.” (Docket No. 19, at 9). Whether
or not vans or other vehicles fit those terms as they are used in the regulation, they do not fall within “at least one of
the [twelve statutory] categories” of covered public accommodations as required by the regulation, see § 36.104, and
the statute itself, see 42 U.S.C. § 12181(7); Magee, 833 F.3d at 533–36 (affirming district court decision that held
that while vending machines could be construed as “equipment” or “personal property” under the regulations, they
“are not akin to any of the twelve specific categories of places of public accommodation listed in the statute and the
federal regulations” (internal quotations omitted)). Insofar as the regulation contemplates including vans or other
vehicles within the twelve statutory categories of public accommodations as enumerated in § 12181(7) or in the
regulation itself, the court rejects that interpretation as “manifestly contrary” to the plain meaning of the statute. See
Ford, 145 F.3d at 613 (quoting Chevron, 467 U.S. at 844).
are places of public accommodation—is bolstered by the fact that Title III makes a clear
distinction between places of public accommodation and transportation systems. See Ramos,
2015 WL 758087, at *5 (emphasis in original) (referring to Title III’s heading “Public
Accommodations and Services Operated by Private Entities”: “Title III expressly applies to
public accommodations and certain services operated by private entities.” (emphasis in
original)). This distinction is especially obvious in the structure of § 12182: While that section
clearly prohibits discrimination on the basis of disability in the administration of “fixed route”
and “demand responsive” transportation systems, see § 12182(b)(2)(B)–(C), the statute treats
those transportation systems as “goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation” and not as “place[s] of public
accommodation” themselves, compare § 12182(a) (prohibiting discrimination “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”) with, e.g., § 12182(b)(2)(C)(ii)
(defining “discrimination” under § 12182(a) as the failure of a private entity that operates a
demand responsive system to make that system “readily accessible to and usable by individuals
with disabilities” or to otherwise provide a level of service to the disabled that is not “equivalent
to that provided to individuals without disabilities”). In other words, the transportation system is
treated as an accommodation provided by the requisite “place” referenced in § 12182(a). Section
12182 therefore prohibits discrimination in the administration of transportation systems operated
by a place of public accommodation or by a private entity that owns, leases, or operates a place
of public accommodation, such as a shuttle service operated by a hotel. 10 See Ramos, 2015 WL
Private entities that are “primarily engaged in the business of transporting people” and operate a demand
responsive system or other transportation system without connection to a place of public accommodation are subject
to the prohibitions of § 12184. See § 12184(a); Ramos, 2015 WL 758087, at *5 (“Title III divides those private
entities that operate a demand responsive system into two covered groups: (1) private entities (whether public
758087, at *5; Civil Rights Educ. & Enf’t Ctr. v. Hosp. Props. Tr., 317 F.R.D. 91 (N.D. Cal.
2016) (evaluating a class action suit under § 12182(a) against a hotel chain for its alleged failure
to accommodate disabled individuals who desired to use the hotels’ shuttle system). Thus, it is
clear that the statute itself does not classify services like the HIVEs program as places of public
accommodation, but as services of such places. As Plaintiff has failed to allege any qualifying
associated place, the court concludes that the HIVEs program is not a “public accommodation”
under § 12181(7). Accordingly, Defendant is not subject to the prohibitions of § 12182(a).
The court holds that the prohibitions of § 12182(a) of Title III of the Americans with
Disabilities Act do not apply to the HIVEs program or to Defendant as pled. As a result, Plaintiff
has failed to state a claim against Defendant under that Act. Consequently, Defendant’s Motion
to Dismiss (Docket No. 6) must be GRANTED and Plaintiff’s claims against Defendant are
IT IS SO ORDERED.
Signed this 30th day of March, 2017.
BY THE COURT
Jill N. Parrish
United States District Court Judge
accommodations or not) that provide specified public transportation services and are ‘primarily engaged in the
business of transporting people and whose operations affect commerce,” which are subject to § 12184 (these include
taxi services), and (2) public accommodations that operate a demand responsive system but that are not primarily
engaged in the business of transporting people (i.e., not subject to § 12184), which are subject to § 12182(b)(2)(C)
(these include hotels with hotel shuttles).”). But Plaintiff has not alleged a violation of this section.
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