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RE: Remember Southwest Airlines?

From: Steuerwalt, Jon C. <jon.c.steuerwalt@Maine.gov>
Date: Tue, 20 May 2003 14:16:06 -0400
Message-ID: <959A750D16C8D211AFB7006097199A86014EBCC6@brs-data.brs.dol.state.me.us>
To: WAI-IG <w3c-wai-ig@w3.org>

The "Order Granting the Defendant's Motion to Dismiss" is available (as a
PDF document) on the U.S. District Court,
Southern District of Florida website through the following link:
<http://www.flsd.uscourts.gov/default.asp?file=cases/index.html>

It's the 5th item listed under the "Orders & Opinions" section is labeled
"02-CV-21734-SEITZ - - Access Now, Inc. & Robert Gumson v. Southwest
Airlines, Co." and it contains a javascript-enabled link to the PDF file.
In case you have a problem accessing this document, the unedited text from
the PDF appears below.  Jon

CLOSED
CIVIL
CASE
UNITED ST A YES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 02-21734-C1V -SEn'Z/BANDSTRA
ACCESS NOW, INC., a Florida
non-profit corporation, and
ROBERT GUMSON, individually,
Plaintiffs,
VS.
SOUTHWEST AIRLINES, CO..
a Texas corporation.
Defendant.
f
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
THIS MATTER is before the Court on Defendant Southwest Airlines, Co. 's
("Southwest") Motion
to Dismiss Plaintiffs' Complaint [DE- I I]. Plaintiffs, Access Now, Inc.
("Access Now"), a non-profit, access
advocacy organization for disabled individuals, and Robert Gumson
("Gumson"), a blind individual, filed
this four-count Complaint for injunctive and declaratory relief under the
Americans with Disabilities Act
("ADA "),42 V.S.C.  12101, et seq. Plaintiffs contend that Southwest's
Internet website, southwest.com,
excludes Plaintiffs in violation of the ADA, as the goods and services
Southwest offers at its "virtual ticket
counters" are inaccessible to blind persons. Southwest has moved to dismiss
Plaintiffs' Complaint on the
grounds that southwest.com is not a "place of public accommodation" and.
therefore. does not fall within
the scope of Title III of the ADA. The Court has considered the parties'
thorough papers, the extremely
informative argument of counsel, and the exhibits presented during oral
argument. For the reasons stated
below, the Court will grant Southwest's motion to dismiss.
Background
Having found that nearly forty-three million Americans have one or more
menta) or physical
di!;8bilities, that such individuals continually encounter various forms of
discrimination. and that "the
continuing existence of unfair and unnecessary discrimination and prejudice
denies people with disabilities
Page of 12
,.,~\
the opportunity to compete on an equal basis and to pursue those
opportunities for which our free society is
justifiably famous," Congress enacted the ADA in 1990. Pub. L. No. 101-336,
 2(a). 104 Stat. 327, 328.
Congress' stated purposes in enacting the ADA were, among other things, to
provide "a clear and
comprehensive national mandate for the elimination of discrimination against
individuals with disabilities,"
and "c]ear, strong, consistent, enforceable standards addressing
discrimination against individuals with
disabilities."!d.. Among the statutorily created rights embodied within the
ADA. is Title Ill's prohibition
against discrimination in places ofpub1ic accommodation. 42 V.S.C. 
12182(8).
Since President George Bush signed the ADA into law on July 26, 1990, this
Nation, as well as the
rest of the world, has experienced an era of rapidly changing technology and
explosive growth in the use of
Today, millions of people across the globe utilize the Internet on a regular
basis for the Internet.
Although this increasingly widespread and swiftly communication, news
gathering, and commerce.
developing technology provides great benefits for the vast majority of
Internet users, individuals who suffer
from various physical disabilities may be unable to access the goods and
seT'vices offered on many Internet
websites. According to Plaintiffs, of the nearly tcn million visually
impaired persons in the United States,
approximately 1.5 million of these individuals use the Internet.
In an effort to accommodate the needs of the visually impaired, a number of
companies within the
computer software industry have developed assistive technologies. such as
voice-dictation software. voicenavigation
software. and magnification software to assist visually impaired persons in
navigating through
varying degrees of text and graphics found on different websites. However.
not only do each of the different
assistive software programs vary in their abilities to successfully
interpret text and graphics, but various
websites also differ in their abilities to allow different assistive
technologies to effectively convert text and
graphics into meaningful audio signals for visually impaired users. This
lack of coordination between
wcbsite programmers and assistive technology manufacturers has created a
situation where the ability of a
visually impaired individual to access a website depends upon the particular
assistive software program being
Page 2 of 12
used and the particular website being visited.
In light of this rapidly developing technology, and the accessibility
problems faced by numerous
visually impaired Internet users, the question remains whether Title III of
the ADA mandates that Internet
website operators modify their sites so as to provide complete access to
visually impaired individuals!
Because no court within this Circuit has squarely addressed this issue. the
Court is faced with a question of
first impression, namely, whether Southwest's Internet website,
southwest.com, is a place of public
accommodation as defined by the ADA, and if so, whether Title m of the ADA
requires Southwest to make
the goods and services available at its "virtual ticket counters" accessible
to visually impaired persons.
Southwest, the fourth largest U.S. airline (in terms of domestic customers
carried), was the first
airline to establish a home page on the Internet. ~ Southwest Airlines Fact
Sheet, at
h!!P;!Lwww .southwest.com/about_swa/Qresslfactsheet.html (Last visited Oct.
16.2002). Southwest' s Internet
website, southwest. com, provides consumers with the means to, among other
things, check airline fares and
schedules, book airl ine, hotel, and car reservations, and stay infonned of
Southwest's sales and promotions.
Employing more than 35,000 employees, and conducting approximately 2,800
flights per day, Southwest
reports that "approximately 46 percent, or over $500 miIljon, of jts
passenger revenue for first quarter 2002
I Although it appears that no well-defmed, generally accepted standards
exist for progranuning assistive
software and websites so as to make them unifonnly compatible. Plaintiffs
provided the Court with a copy of the
Web Content Accessibility Guidelines 1.0, W3C Recommendation 5-May-1999,
produced by the Web Accessibility
Initiative. ~ Web Content Accessibility Guidelines 1.0. at
httR://www.w3.orgiIR/WCAG 10/ (Last visited Oct. 16,
2002). While "these guidelines explain how to make Web content accessible to
people with disabilities," the
guidelines further note that they do "not provide specific information about
browser support for different
technologies as that information changes rapidly." ~ Moreover, not only are
these guidelines over three-years old,
but there is no indication that the Web Accessibility Initiative. which
"pursues accessibility of the Web through five
primary areas of work: technology, guidelines, tools, education and
outreach, and research and development," is a
generally accepted authority on accessibility guidelines. ~ About W AI, at
httD://www. w3.orllfW A I/about.html
(Last visited Oct. 16, 2002).
2 Some conu-nentators, while recognizing the paucity of case law in this
area, have suggested that Internet
websites f31l within thc scopc of the ADA. ~,.,I.l\:rrr\:y Scull Ranen,
Note. Was Blind But Now I See: The
Argument for ADA Aoolicability to the Intcrnet, 22 B.C. Third World L.J. 389
(2002); Adam M. Schloss, ~
fu.&h!1or Visually-r>isabled Peoole: Does Title III of the
Americ~~lt_~bilities Act AORly to Internet
Websites1, 35 Colum. J.L. & Soc. Probs. 35 (2001); Matthew A. Stowe,
Note,lnteroretine 'Place of Public
Acco~9a!iQn:J.!~I:.I.i!le III o(the ADA: A Technical Determination with
Potentially Broad Civil Rights
Irnolications, 50 Duke L.J. 297 (2000); Jonathan Bick. Americans with
Disabilitics Act and the Internet, 10 Alb. L.J.
Sci. & Tech. 205 (2000).
Page 3 of 12
was generated by online bookings via southwest.com." ld. According to
Southwest, "[m]ore than 3.5 million
people subscribe to Southwest's weekJy Click 'N Save e-mails.".Ig, Southwest
prides itself on operating
an Internet website that provides "the highest level of business value,
design effectiveness, and innovative
technology use achievable on the Web today.tt 12.
Despite the apparent success of Southwest's website, Plaintiffs contend that
Southwest's technology
violates the ADA, as the goods and services offered on southwest.comare
inaccessible to blind persons using
a screen reader! (Compl. ~4). Plaintiffs allege that although "southwest.com
offers the sighted customer the
promise of independence of on-line airline/hotel booking in the comfort and
safety of their home. .even if
a blind person like [Plaintiff] Gumson has a screen reader with a voice
synthesizer on their computer, they
are prevented from using the southwest.com website because of its failure to
allow access." (Compl. '4).
Specifically, Plaintiffs maintain that "the southwest.com website fails to
provide 'alternative text' which
would provide a . screen reader' program the ability to communicate via
synthesized speech what is visually
displayed on the website." (Compl. '11). Additionally, Plaintiffs assert
that the southwest. com website "fails
to provide online forms which can be readily filled out by [plaintiffs] and
fails to provide a 'skip navigation
link' which faciljtates access for these blind consumers by pennitting them
to bypass the navjgatjon bars on
a website and proceed to the main content." (Cornpl. ~12).
Plaintiffs' four-count Complaint seeks a declaratory judgment that
Southwest's website violates the
communication barriers removal provision of the ADA (Count I), violates the
auxiliary aids and services
provision of the ADA (Count II), violates the reasonable modifications
provisions of the ADA (Count III),
and vio]ates the full and equal enjoyment and participation provisions of
the ADA (Count IV),. Plaintiffs
3 Plainhffs claim that although purchasing tickets at southwest. com is
"technically possible, plaintiffs found
purchasing a ticket to be extremely difficult..." (Cornpl. at 7). Plaintiffs
do not argue that they are unable to access
such goods and services via alternative means such as telephone or by
visiting a particular airline ticket counter or
trav.:.1 ag':'llcy.
4 Plaintiffs' Counsel informed the Court that Plaintiffs madc no cffort to
resolve this dispute prior to filing
their Con'q)laint. (Tr., Oct. 16,2002). Although the law does not require
Plaintiffs to confer with Southwest prior to
filing this action, in light of Plaintiffs' Counsel's discussion of the
proactive measures that other companies, such as
Amazon.com, have taken to modify their websitcs to makc thcm more acccssiblc
to visually in1paired persons, it is
unfortunate that Plaintiffs made no attempt to resolve this matter before
resorting to litigation.
Page 4 of 12
ask this Court to enjoin Southwest from continuing to violate the ADA, to
order Southwesto make its
website accessible to persons who are blind, and to award Plaintiffs
attorneys' fees and costs. Southwest has
moved to dismiss Plaintiffs' Complaint pursuant to Fed. R. Civ. P. 12(b)(
6). The Court has federal question
jurisdiction over this matter pursuant to 28 U .S.C.  1331.
Discussion
Standard of Review A.
Federal Rule of Civil Procedure 12(b)(6) provides that dismissal ora claim
is appropriate when "it
is clear that no relief could be granted under any set of facts that could
be proved consistent with the
allegations." Blackston v. Alabama, 30F.3d 117, 120(llthCir. 1994) (quoting
Hishon v. KiM& Soaldin2,
467 U.S. 69,73 (1984. At this stage of the case, the Court must accept
Plaintiffs' allegations in the
Complaint as true and view those allegations in a light most favorable to
Plaintiffs' to detennine whether the
Complaint fails to state a claim for relief. S & Davis Int'l. Inc. v.
Rmubljc of Yemen, 218 F.3d 1292, 1298
(11. CiT. 2000).
B. Plaintiffs Have Failed to State a Claim Upon Which Relief Can be Granted
The threshold issue of whether an Internet website, such as southwest. com,
is a "place of public
accommodation" as defined by the ADA, presents a question of statutory
construction. As in all such
disputes. the Court must begin its analysis with the plain language of the
statute in question. Rendon v.
Vallevcrest Prods.. Ltd., 294 F.3d 1279,1283 n. 6(llth Cir. 2002) (citing K
MartCQIR. v. Cartier. Inc., 486
u.s. 281,291 () 988. The "first step in interpreting a statute is to
detenninc whether the language at issue
has a plain and unambiguous meaning with regard to the particular dispute in
the case..' Rendon, 294 F .3d
at 1283 n. 6. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997.
A court need look no further
where the statute in question provides a plain and unambiguous meaning.
Rendon, 294 F.3d at 1283 n. 6.
1. Southwest.com is Not a "Place of Public Accommodation" as Defined by the
Plain
and Unambiguous Language of the ADA
Title III of the ADA sets forth the following general rule against
discrimination in places ofpublic
accommodation:
Page 5 of 12
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) (emphasis added).
The statute specifically identifies twelve (12) particularized categories of
"places of public
accommodation." 42 V.S.C.  12181(7). "Public accommodations" include:
(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;
(0) 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 pri
vate 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.
42 U.S.C.  12181(7).
Furthermore, pursuant to Congress' grant of authority to the Attorney
General to issue regulations
to carry out the ADA. the applicable federa1 regulations a1so 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
Page 6 of 12
[twelve (12) enumerated categories set forth in 42 V.S.C.  12181(7).]" 28
C.F.R.  36.104.5 Section 36.104
defines "facility" 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,"
28 C.F.R,  36.104, In interpreting
the plain and unambiguous language of the ADA, and its applicable federal
regulations, the Eleventh Circuit
has recognized Congress' clear intent that Title III of the ADA governs
solely access to physical, concrete
places of public accommodation. Rendon. 294 F .3d at 1283-84; Stevens v.
Premier Cruises. Inc., 215 F. 3d
1237. 1241 (11th Cir. 2000) (noting that "[b]ecause Congress has provided
such a comprehensive definition
of 'public accommodation,' we think that the intent of Congress is clear
enough"). Where Congress has
created specifically enumerated rights and expressed the intent of setting
forth "clear, strong, consistent,
enforceable standards," courts must follow the law as written and wait for
Congress to adopt or revise
legislatively-defined standards that apply to those rights. Here, to fall
within the scope of the ADA as
presently drafted, a public accommodation must be a physical, concrete
structure. To expand the ADA to
cover "virtual" spaces would be to create new rights without wett-defined
standards.
Notwithstanding the fact that the plain and unambiguous language of the
statute and relevant
regulations does not include Internet websites among the definitions of
"places of public accommodation,'
Plaintiffs allege that the southwest.com website fa11s within the scope of
Title Ill, in that it is a place of
"exhibition, display and a sales establishment." (Comp1. ~9). Plaintiffs'
argument rests on a definition they
have created by selecting language from three separate statutory subsections
of 42 V.S.C.  12181(7). ~
42 U,S.C,  t 2 t 8 t (7)(C), (H) &. (E),6 While Plaintiffs can, as
advocates, combine general terms from three
S The Coun may consider the C.F.R. definitions. as Congress specifically
directed the Attorney General to
"issue regulations in an accessible format to carry out the provisions of
[the ADA]. . . that include standards
applicable to facilities and vehicles covered under section 12182 of [the
ADA.]" 42 V.S.C.  12186(b).
6 Plaintiffs created their definition from the following italicized language
in three subsections of 42 V.S.C. 
12181(7}:
"a motion picture house, theater, concert hall, stadium, or other place of
exhibition or
entertainment,"42 V.S.C.  12181(7)(C):
"a museum, library, gallery, ur ulher place of public display or
collection," 42 V.S.C. 
12181(7)(H): and
Page 7 of 12
separate statutory subsections, and apply them to an unenurnerated specific
tenn, namely Internet websites,
the Court must view these general terms in the specific context in which
Congress placed each of them.
Under the rule of ejusdem generis, "where general words follow a specific
enumeration of persons
or things, the general words should be limited to persons or things similar
to those specifically enumerated."
Al1en v. A.G. Thomas, 161 F.3d667, 671 (1IthCir.I998) (quoting United States
v. Turkette, 452 U.S. 576,
581-82 (1981; ~~ Sna!)!> v. Unlimited Concepts. Inc.. 208 F.3d 928,934
(11th Cir. 2000); Sutton v.
Providence St. Joseoh Medical Or.. 192 F .3d 826,834 (9th Cir. 1999). Here,
the general tenns, "exhibition,"
"display," and "sales establishment," are limited to their corresponding
specificaJ1y enumerated terms, aJ1
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 V.S.C.  12181(7)(C), (H) & (E). Thus, this Court cannot
properly construe "a place of
public accommodation" to include Southwest's Internet website, southwest.
com.
2. Plaintiffs Have Not Established a Nexus Between Southwest.com and a
Physical,
Concrete Place of Public Accommodation
Although Internet websites do not fall within the scope of the ADA's plain
and unambiguous
language, Plaintiffs contend that the Court is not bound by the statute's
plain language, and should expand
the ADA's application into cyberspace.7 As part of their argument,
Plaintiffs encourage the Court to fol1ow
Caroarts Distribution Ctr.. Inc. v. Automotive Wholesaler's Assoc. of New
En2land, in which the First
Circuit broadly held that the ADA '5 definition of"public accommodation" is
not limited to actual physical
structures, but includes, inter alia, health-benefit plans. Camarts, 37 F
.3d 12, 19 (I st Cir. 1994).1 While
"a bakery, grocery store, clothing store, hardware store, shopping center,
or other sales or rental
establishment," 42 V.S.C.  12181 (7)(E).
7 Plaintiffs concede that neither the legislative history of the ADA nor the
plain language of the statute and
applicable federal regulations, contain any specific reference to the
Internet or cyberspace. (Tr., Oct. 16,2002).
8 Although Camans does not explicitly address the issue of whether an
Internet website falls within the
definition of "public accomn'k>dation," Plaintiffs focus on the First
Circuit's dicta discussing the public policy
reasons for why the ADA's definition of"public acconunodations" should be
read broadly:
By including "travel service" among the list of serviccs considered "public
acconU11Odatiuns,"
Congress clearly contemplated that "service establishments" include
providers of services which do
Page 8 of 12
application of the broad holding and dicta in Camarts to the facts in this
case might arguably requiTe this
Court to include Internet websites within the ADA's definition of "public
accommodations," the Eleventh
Circuit has not read Title ill of the ADA nearly as broadly as the First
Circuit.9 ~ Rendon. 294 F .3d 1279.
h1 Rendon, a recent Eleventh Circuit case addressing the scope of Title m, a
group of individuals
with hearing and upper-body mobility impairments sued the producers of the
television game show, "Who
Wants To Be A Millionaire," alleging that the use of an automated fast
finger telephone selection process
violated the ADA because it excluded disabled individuals from
participating. The district court dismissed
the complaint on grounds that the automated telephone selection process was
not conducted at a physical
location, and therefore, was not a "place of public accornrnodation" as
defined by the ADA. The Eleventh
not require a person to physically enter an actual physical structure. Many
travel services conduct
business by telephone or correspondence without requiring their customers to
enter an office in order
to obtain their services. likewise, one can easily imagine the existence of
other service establistunents
conducting business by mail and phone without providing facilities for their
customers to enter in
order to utilize their services. 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.
Camarts, 37 F.3d at 19.
9 In addition to ~arts, Plaintiffs encourage this Court to follow Doe v.
Mutual of Omaha Ins. Co.. 179
F .3d 557, 559 (7th Cir. 1999), in which Chief Judge Posner approvingly
cited to CAmirts and stated in dicta that:
The core meaning of[42 U.S.C.  12182(a)], 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, rCamlrts]),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.
Plaintiffs also cite to a September 9, 1996 letter from Deval L. Patrick,
Assistant Attorney General, Civil Rights Division,
United States Department of Justice, to U.S. Senator Tom Harkin, advising
the Senator that "[c]overed entities that use
the Internet for communications regarding their programs, goods, or services
must be prepared to offer those
communications through accessible means as well." (PI,'s Resp., Exh. A).
Finally, Plaintiffs cite the recent unpublished
opinion in Vincent Martin et al. v. Metro. Atlanta RaDid Transit Authoritv,
No. I:OI-CV-3255-TWT (N.D. Ga. Oct. 7,
2002), in which U.S. District Judge Thomas W. Thrash, Jr. held that until
the Metropolitan Atlanta Rapid Transit
Authority ("MARTA") reformats its Internet website in such a way that it can
be read by visually impaired persons using
screen readers, MARTA is "violating the ADA mandate of'making adequate
communications capacity available, through
accessible formats and technology, to enable users to obtain information and
schedule service. ,,' Vincent Martin et al.
v, Metro, Atlanta Rapid Transit Authority, No. I :OI-CV-3255-TWT, at 34
(N.D. Ga. Oct. 7, 2002) (quoting 49 C.F.R.
 37. I 67(f). That case, however, is distinguishable in one critical
respect: Plaintiffs in Vincent Martin filed suit under
both the Rehabilitation Act of 1973, asarnended, 29V,S.C.  794 et seq, ,
and Title II of the ADA, 42 V.S.C.  12132.
nut Title 111 as in the pre~ent case. Title II prohibits qualified
individuals from being "excluded from participation in or
[being] denied the benefits of the services, programs, or activities of a
public entity, or [being] subjected to
discrimination by any such entity." 42 V.S.C.  12132. Title II ofthc ADA
defines "public entity" as "(A) any State or
local government; (B) any department. agency, special purpose district. or
other instrumentality of a State or States or
local government; and (C) the National Railroad Passenger Corporation, and
any commuter authority " 42 V.S.C. 
12131. Because the present case deals with Title III, not Titlc II of the
ADA, and Plaintiffs could not allege any facts
that would place Southwest within the definition of a "public entity" under
Title II, Vincent Martin is inapplicable.
Page 9 of 12
Circuit reversed, holding that the telephone selection process was "a
discriminatory screening
mechanism...which deprives [the plaintiffs] of the opportunity to compete
for the privilege of being a
contestant on the [game show]." Rendon, 294 F.3d at 1286. The Eleventh
Circuit observed that "[t]here is
nothjng in the text of the statute to suggest that discriminatjon yja an
imposjtion of screening or eligibility
requirements must occur on site to offend the ADA." rg. at 1283-84. Most
significantly. the Eleventh Circuit
noted that the plaintiffs stated a claim under Title III because they
demonstrated "a nexus between the
challenged service and the premises of the public accommodation," namely the
concrete television studio
ld.. at 1284 n. 8.
Plainti ffs contend that the Eleventh Circuit in Rendon al igned itself with
the First Circuit in Cmarts,
and that Rendon requires a broad reading of the ADA to include Internet
websites within the "public
accommodations" definition. However, these arguments, white emotionally
attractive, are not legally viable
for at least two reasons. First, contrary to Plaintiffs' assertion that the
Eleventh Circuit aligned itself with
Ca~s, the Eleventh Circuit in Rendon not only did not approve ofC~arts, it
failed even to cite it.IO
Second, whereas the defendants in Rendon conceded, and the Eleventh Circuit
agreed, that the game
show at issue took place at a physical, public accommodation (a concrete
television studio), and that the fast
finger telephone selection process used to select contestants tended to
screen out disab1ed individuals, the
Internet website at issue here is neither a physical, pubJic accommodation
itself as defined by the ADA, nor
a means to accessing a concrete space such as the speci fic television
studio in Rendon. I I 294 F .3d at 1284.
10 In fact, the Eleventh Circuit recognized those courts which declined to
follow Camarts, noting that "to
the extent that a plaintiff intends to raise a claim of disability
discrimination based on the kind of insurance offered,
the plaintiff must demonstrate that the policy was offered to the plaintiff
directly by the insurance company and was
connected with its office,,', as opposed to its being a privilege provided
by the plaintiff's employer." Rendon, 294
F.3d at 1284 n. 8 (emphasis added) (citing Wever v. Twentieth Century Fox
Film Corn.. 198 F.3d 1104, 1114-15
(9th Cir. 2000) (noting that "some connection between the good or service
complained of and an actual physical
place is required); Ford v. Scherine-Plou2h COrD., 145 F.3d 601. 612-13 (3d.
Cir. 1998) (noting that "[t]he plain
meaning of Title III is that a public acconunodation is a place...'");
Parker v. Metro. Life Ins. Co., 121 F.3d 1006,
1011-14 (6th Cir. 1997) (noting that "[a]s is evident by  12181(7), a
public acconunodation is a physical place...'")).
II In recognizing the requirement that a plaintiff establish "a nexus
between the challenged service and the
premises of the public accommodation:' the Eleventh Circuit noted that the
plaintiffs in Rendon stated a claim under
Title III of the ADA because thcy sought "thc privilcge of compcting in a
contcst hcld in a cO/lcrete space..."
Rendon, 294 F.3d at )284 (emphasis added); comoare Stoutenboroul!h v. Nat')
Football Leal!ue. Inc., S9 F.3d S80
Page 10 of 12
Although Plaintiffs contend that this "is a case seeking equal access to
Southwest's virtual 'ticket counters'
as they exist on-line," (Pl.' s Resp. at 13), the Supreme Court and the
Eleventh Circuit have both recognized
that the Internet is "a unique medium-known to its users as
'cyberspace'-located in no particular
geographical location but available to anyone, anywhere in the world, with
access to the Internet." V o~eur
Donn. L.Co v. Ci~ of Tamni, 265 F.3d 1232, 1237 n.3 (11th Cir. 2001)
(quoting Reno v. ACLU. 521 U.S.
Thus, because the Internet website, southwest. com, does not exist in any
particular 844, 851 (1997.
geographical location, Plaintiffs are unable to demonstrate that Southwest's
website impedes their access to
a specific, physical, concrete space such as a particular airline ticket
counter or travel agency.II Having
failed to establish a nexus between southwest. com and a physical, concrete
place of public accommodation,
Plaintiffs have failed to state a claim upon which relief can be granted
under Title III of the ADA,I)
Conclusion
Accordingly, based upon the foregoing reasons, it is hereby
ORDERED that Defcndant Southwest's Motion to Dismiss Plaintiffs' Complaint
[DE-II] is
(6th Cir. 1995) (holding that hearing impaired plaintiffs, who alleged that
National Football League "blackout rule"
violated Title III of ADA, failed to state a cause of action, as there was
no nexus between televised broadcast of
football ga~ and physical place of public accommodation). ~ ~ TorTeS v. AT&T
Broadband. LLC, JS8 F.
Supp.2d 1035 (N.D. Cal. 2001) (dismissing Title III claim that cable service
provider nnlst make a list of available
programs accessible to the visually impaired, and holding that "neither the
digital cable system nor its on-screen
channel menu can be considered a place of public acconunodation within the
~aning of the ADA"); Access Now.
Inc. v. Claire's Stores. Inc., No. 00-14017-CIV-MOORE, 2002 WL 1162422, at.5
(S.D. Fla. May 7, 2002) (noting
in approving a Title III class settle~nt that "[n]o court has held that
internet websites made available to the public
by retail entities must be accessible").
12 It is important to note that aircrafts are explicitly exempt from Title
III of the ADA. 42 V.S.C. 
12181(10). Plaintiffs do not argue that Southwest's website impedes their
access to aircrafts.
13 Given the number of visually impaired persons who utilize the Internet
for commerce, and the significant
amount of business that Southwest obtains through its Internet website, it
is unfortunate that the panies have not
cooperated to develop a creative solution that benefits both parties and
which avoids the costs and polarizing effects
of litigation. It is especially surprising that Southwest, a company which
prides itself on its consumer relations, has
not voluntarily seized the opportunity to employ all available technologies
to expand accessibility to its website for
visually impaired customers who would be an added source of revenue. That
being said, in light of the rapidly
developing technology at issue, and the lack of well-defined standards for
bringing a virtually infinite number of
Internet wt:bsilt:S into complial1Ce with the ADA, a precondition for taking
the ADA into "virtual" space is a
meaningful input from all interested parties via the legislative process. As
Congress has created the statutorily
defined rights under the ADA, it is the role of Congress, and not this
Court, to specifically expand the ADA's
definition oC"public accunU11Udalion" bt:yond physical. concrete places
o(public accommodation. to include
"virtual" places of public accommodation.
Page II of 12
GRANTED, and this action is DISMISSED wrrn PREJUDICE. AIJ pending motions
not otherwise ruled
upon are denied as moot, and this case is CLOSED. tt-
DONE and ORDERED in Miami, Florida, thiSI:i- day of October, 2002.
~ -
P A TRItlA
JUDGE
c:c:
Magistrate Judge Ted E. Bandstra
Steven R. Reininger. Esq.
Howard R. Behar, Esq.
Counsel for Plaintiffs
Rasco Reininger Perez & Esquenazi, P .L.
283 Catalonia Ave., 2nd FIr.
Coral Gables, FL 33134
fax 305-476-7102
K. Renee Schimkat, Esq.
Garth T. Yearick, Esq.
Counsel for Defendant Southwest Airlines. Co.
Carlton Fields, P .A.
4000 Bank of America Tower at Int'l Place
100 SE 2nd St.
Miami, FL 33131
fax 305-530-0055
Page 12 of 12 

-----Original Message-----
From: Isofarro [mailto:w3evangelism@faqportal.uklinux.net]
Sent: Tuesday, May 20, 2003 7:20 AM
To: Joe Clark; WAI-IG
Subject: Re: Remember Southwest Airlines?



From: "Joe Clark" <joeclark@joeclark.org>
Subject: Remember Southwest Airlines?


> Well, after winning an ADA complaint about the inaccessibility of
> their Web site, Southwest Airlines is suddenly promoting the changes
> it has made to improve accessibility:

Good news indeed - and well spotted!

In creating a blog entry to mark the occassion I'm trying to find a legal
opinion piece on the original case ruling on the Southwest Airlines suit. I
vaguely recall a link to it from http://joeclark.org/accessiblog/ - but I'm
struggling to find it. (And its bl***y annoying that googling on "Southwest
Airlines Accessibility" returns my blog entry as top result - hardly an
authorative source).

The best I can find this morning is Cynthia Brewer's post to this mailing
list:
http://lists.w3.org/Archives/Public/w3c-wai-ig/1998JanMar/0351.html
Although its a good enough resource for me, I keep recalling (imagining?) a
legal opinion piece on the actual "flawed" ruling - any ideas?

Thanks
Mike.
Received on Tuesday, 20 May 2003 14:17:58 GMT

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