[VendTalk] Fwd: [blindlaw] Article: Justice Department Says Ve nding Machines Are Not Places Of Public Accommodation— And So Much More, Seyfarth/Shaw, July 27, 2017

David Andrews dandrews at visi.com
Tue Aug 1 02:21:41 UTC 2017

>Subject: [blindlaw] Article: Justice Department Says Ve
>  nding Machines Are Not Places Of Public Accommodation—
>  And So Much More, Seyfarth/Shaw, July 27, 2017
>From: "Nightingale, Noel via BlindLaw" <blindlaw at nfbnet.org>
>Cc: "Nightingale, Noel" <Noel.Nightingale at ed.gov>
>Justice Department Says Vending Machines Are Not 
>Places Of Public Accommodation—And So Much More
>Seyfarth and Shaw
>July 27, 2017
>By Kristina M. Launey & Minh Vu
>Seyfarth Synopsis: In amicus brief to the U.S. 
>Supreme Court, the Justice Department agreed 
>with the Fifth Circuit and defendant Coca-Cola 
>that a vending machine is not a place of public 
>accommodation and that public accommodations can 
>comply with the ADA by providing assistance to 
>customers in lieu of having accessible self-service equipment.
>The Supreme Court recently asked the U.S. 
>Department of Justice (DOJ) to weigh in on 
>whether vending machines are places of public 
>accommodation covered by Title III of the 
>ADA.  The Court’s request related to a pending a 
>Petition for Certiorari filed by a blind 
>plaintiff who unsuccessfully sued Coca-Cola for 
>allegedly owning and/or operating vending 
>machines that are not independently usable by 
>the blind.  Both the District Court and the 
>Fifth Circuit had concluded that such machines 
>are not public accommodations under the ADA.
>The DOJ’s amicus brief unequivocally stated its 
>position that vending machines are not public 
>accommodations.  The DOJ advanced a number of 
>arguments in support of its position that a 
>vending machine does not fall within any of the 
>12 categories of businesses that are considered 
>public accommodations under the statute.  Among 
>other things, the DOJ stated that a vending 
>machine is not a “sales establishment” covered 
>by the law but rather a piece of equipment 
>typically found within public accommodations facilities.
>The most significant commentary from the DOJ’s 
>brief concerns a public accommodation’s 
>obligations with regard to self-service 
>equipment provided for public use.  The DOJ stated:
>the operator of a public accommodation in which 
>the vending machines is located is better suited 
>to determine whether such changes [(i.e. making 
>the vending machines independently accessible by 
>blind users)] are the most efficient means of 
>complying with the ADA.  When buying or leasing 
>vending machines, some business owners may 
>insist upon the inclusion of accessible 
>features.  Others, however, might choose instead 
>to install the machines at locations within 
>their establishments where their employees will 
>be available to assist customers with 
>disabilities.  The business owner is better 
>positioned than the seller or lessor of the 
>machines to determine what method of ensuring 
>accessibility will be most effective at a particular location.
>In other words, it is the DOJ’s position that 
>providing assistance to customers with 
>disabilities is a lawful way to provide access 
>in lieu of procuring accessible vending 
>machines.  Presumably this position would extend 
>to all self-service equipment provided for 
>customer use — at least when there are no 
>privacy concerns.  (In 2014, the DOJ had filed a 
>Statement of Interest in a different case 
>involving allegedly inaccessible point-of-sale 
>devices where it took the position that a public 
>accommodation must provide individuals with 
>disabilities independent access to point-of-sale 
>devices which require the entry of Personal Identification Numbers (PINs).)
>Also significant was DOJ’s view that the Supreme 
>Court should not grant review of the case in 
>order to address the question of whether 
>online-only businesses are covered by Title III 
>of the ADA.  The DOJ noted that while “questions 
>concerning Title III’s application to 
>non-physical establishments ­ including websites 
>or digital services ­ may someday warrant” the 
>Supreme Court’s attention, this case was not the 
>time or place to do so since the plaintiff here 
>encountered the machines in person, not via 
>telephone or internet.  The DOJ’s suggestion 
>that the Court should defer on this issue 
>suggests that the Department may be evaluating 
>its prior position that online-only businesses are covered by the ADA.

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