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Andrews v. Blick Art Materials, LLC

United States District Court, E.D. New York

July 31, 2017

VICTOR ANDREWS, on behalf of himself and all others similarly situated, Plaintiff,
v.
BLICK ART MATERIALS, LLC, Defendant.

          Anne Seeling C.K. Lee Lee Litigation Group, PLLC

          David Seth Korzenik Terrence Patrick Keegan Miller Korzenik Sommers LLP

          Steve Baron Steven Mandell Mandell Menkes LLC

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS PURSUANT TO FED R. CIV. P 12(B)(6)

          Jack B. Weinstein, Senior United States District Judge

         Table of Contents

         I. Introduction.............................................................................................................2

         II. Factual Allegations..................................................................................................3

         III. Legal Standard........................................................................................................5

         IV. Law...........................................................................................................................6

         A. Americans with Disabilities Act.........................................................................6

         1) Third, Sixth, Ninth, and Eleventh Circuit Precedent...................................8

         2) First and Seventh Circuit Precedent............................................................11

         3) Second Circuit Precedent..............................................................................13

         4) The ADA's Text and Structure....................................................................16

         5) The ADA's Purpose.......................................................................................19

         6) Avoidance of Absurd Results........................................................................21

         7) Plaintiff States a Claim Under the ADA......................................................24

         B. New York State Human Rights Law and New York State Civil Rights Law.............................................................................................25

         C. New York City Human Rights Law................................................................28

         V. Defendant's Remaining Arguments....................................................................29

         A. Primary Jurisdiction Doctrine.........................................................................29

         B. Due Process........................................................................................................33

         VI. Conclusion.............................................................................................................36

         VII. Directions for Further Action in the Litigation.................................................36

         I. Introduction

         The question presented is whether a large retail store chain with an online presence must ensure that its website is accessible to the visually impaired. It reveals problems that have dogged American society: discrimination, access to public accommodations, and how technology has the power to both ameliorate and exacerbate barriers to integration.

         The Supreme Court reminds us:

While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.

Packingham v. North Carolina, 582 U.S. ___ at 6 (2017) (emphasis added). See also Id. at 8 ("In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights."). The plaintiff seeks the chance to participate in a society transformed by the "new, " "protean, " and "far reaching" influence of the Internet.

         Victor Andrews, who is legally blind, is suing Blick Art Materials, LLC ("Blick") for discriminating against him based on his disability-in violation of federal, state, and local disability laws. He is unable to use Blick's website, "dickblick.com, " to purchase the defendant's art products.

         Blick moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, or, in the alternative, for dismissal based on the primary jurisdiction doctrine or a violation of defendant's due process rights.

         The motion is denied. Andrews has a substantive right to obtain effective access to Blick's website to make purchases, learn about products, and enjoy the other goods, services, accommodations, and privileges the defendant's website provides to the general public.

         He may have the right to rely upon procedural methods to enforce those rights by a class action. See Fed. R. Civ. P. 23(b)(2). That issue is not now decided. It will depend on the results of a forthcoming "Science Day" to explore the technology available to enable the "blind to see" websites, and a motion by the parties for summary judgment to explore how burdensome it would be for the defendant to make its website compatible with available technology.

         II. Factual Allegations

         Blick owns and operates nationwide brick-and-mortar retail stores that sell art supplies. There are seven Blick stores in New York State. Compl. at ¶ 31. Blick also owns dickblick.com, through which it sells art supplies directly to consumers for home delivery. Id. at ¶¶ 32-33.

         Though there are allegedly "well-established guidelines for making websites accessible to blind people, " dickblick.com does not follow those guidelines, rendering the website inaccessible to those who are visually impaired. Id. at ¶¶ 38-45. Plaintiff, who is blind, alleges that the inaccessibility of Blick's website "denie[s] [blind individuals] equal access to Blick Stores, as well as to the numerous goods, services and benefits offered to the public through Dickblick.com." Id. at¶35.

         In a conclusory fashion, the plaintiff states that "Dickblick.com . . . contains access barriers which deny full and equal access to Plaintiff, who would otherwise use Dickblick.com and who would otherwise be able to fully and equally enjoy the benefits and services of Blick Stores in New York State." Id. at ¶ 47. Andrews makes specific allegations about being unable to complete purchases or use dickblick.com. See Id. at ¶¶ 48-49. He does not allege that he was unable to purchase art supplies from Blick because of these issues. Instead, he alleges that "[d]ue to Dickblick.com's inaccessibility, . . . blind customers must. . . spend time, energy, and/or money to make their purchases at a Blick store[]. . . . [I]fDickblick.com was accessible, a blind person could independently investigate products and programs and make purchases via the Internet as sighted individuals can and do." Id. at ¶ 45.

         In reviewing defendant's motion to dismiss for failure to state a claim, the court must explore dickblick.com in some depth, and it takes judicial notice of its features and the information posted there. Doron Precision Sys., Inc. v. FAAC, Inc., 423 F.Supp.2d 173, 179 n. 8 (S.D.N.Y.2006) ("For purposes of a 12(b)(6) motion to dismiss, a court may take judicial notice of information publicly announced on a party's website, as long as the website's authenticity is not in dispute and it is capable of accurate and ready determination.") (internal quotation marks omitted).

         The website appears to offers goods and services to the public independent of any goods or services being offered at retail locations. For example, a coupon code that appeared on a banner at the top of the webpage promises free shipping and discounts on orders of items of a certain value specified that the "[o]ffer [was] not valid at Blick Retail stores." http://www.dickblick.com/landing/specialoffer/ (last visited on July 18, 2017). The website also contains a disclaimer stating that "[p]rices, promotions, and availability may vary by store, catalog, and online." http://www.dickblick.com/cart/ (last visited on July 18, 2017).

         Two aspects of the website related to Blick's retail stores are the "store locator, " which lists the addresses and phone numbers of Blick's retail locations in each state with a store, and the ability to make a purchase online for pickup at a Blick retail store. Compl. at ¶ 34(a)-(b). There is also a way to sign up to receive emails containing news and promotions-customers can choose to register for the "Blick Online Email List" to receive "Online Promotions, " the "Blick Store Email List" to receive "in-store promotions and events, " or both. http://www.dickblick.com/requests/mailinglist/ (last visited on July 18, 2017).

         III. Legal Standard

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "In reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, we accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).

         IV. Law

         A. Americans with Disabilities Act

         "To state a claim under Title III [of the Americans with Disabilities Act ("ADA" or "the Act")], [a plaintiff] must allege (1) that she is disabled within the meaning of the ADA; (2) that defendants own, lease, or operate a place of public accommodation; and (3) that defendants discriminated against her by denying her a full and equal opportunity to enjoy the services defendants provide." Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008). The last two elements are contested.

         Andrews contends that dickblick.com is either a public accommodation, a place of public accommodation, or a good, service, facility, privilege, advantage, or accommodation of a place of public accommodation as those terms are defined by the ADA and related regulations. Blick believes that a mere cyber presence is not a "place of public accommodation, " and therefore the website does not fall within the ambit of Title III.

         Resolving this motion requires interpretation of the ADA. When interpreting a statute, courts "turn to the overall statute and its context" and "employ the traditional tools of statutory construction." Catskill Mountains Chapter of Trout Unlimited, Inc. v. Envtl. Prot. Agency, 846 F.3d 492, 512 (2d Cir. 2017) (internal quotation marks omitted). They examine "the statutory text, structure, and purpose as reflected in its legislative history." Id. If the "language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case, " the inquiry ends. United States v. Gagliardi, 506 F.3d 140, 145 (2d Cir. 2007) (internal quotation marks omitted). "If the statutory text is ambiguous, [they turn to] canons of statutory construction." Catskill, 846 F.3d at 512.

         Title III of the ADA provides that "[n]o 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). As indicated below, the critical question is whether a website such as Blick's is a "place."

Discrimination includes
a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.

Id. § 12182(b)(2)(A)(ii). It also includes

a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.

Id. § 12182(b)(2)(A)(iii). The statute defines "public accommodation" as follows:

         The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce-

(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales ...

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