A Court Calls Out Congress & the DOJ for Not Clarifying the ADA’s Application to Online Retailers–Martinez v. Cot’n Wash

August 3, 2022 · by · in Content Regulation, E-Commerce

This lawsuit involves the online retailer dropps.com (apparently it sells cleaning products). Martinez claims that the website isn’t ADA compliant. Martinez sued for an Unruh Act violation, predicated on an ADA violation. The court rejects the claim because a “place of public accommodation” does not cover “retail websites without any connection to a physical space.” This is a published opinion, so it sets CA law until it’s superseded.

While this result may be the logical extension of the Robles precedent, it conflicts with venerable DOJ interpretations of the ADA. This ruling also drops a bomb on the expectations (well-founded or not) in the disabled community, so I expect it will trigger blowback.

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Extensively quoting/citing the SDCCU decision, the court addresses the underlying Internet exceptionalism question:

Martinez argues that the plain meaning of “place of public accommodation” is alone sufficient for us to adopt the broader view taken by several federal courts—namely, that a physical place is not a necessary component of the ADA’s definition of a place of public accommodation.

We disagree that the plain language of the statute is alone sufficient to decide the issue—let alone sufficient to decide the issue in Martinez’s favor. First, the plain meaning of the term “place” weighs against adopting Martinez’s proposed interpretation. Dictionaries “overwhelmingly” define “place” as involving a physical location. Neither Title III nor any implementing regulations provide a different definition of the word for the purposes of Title III. Nor does the state of technology when the ADA was passed in 1990 suggest that Congress was unaware that the term carried a connotation of physical space and thus could exclude certain “sales and retail establishments” from the scope of Title III based on a lack of connection to a physical space…

Martinez argues that we must nevertheless interpret the terms “facility” and “place of public accommodation” broadly enough to include all retail websites, because to do otherwise would lead to an absurd result. Specifically, he argues it would be absurd for Title III to treat a sales transaction differently, depending on the venue through which it occurs…

We disagree. Although treating retail websites like other retailers in 2022 does make sense, it does not follow that treating them differently from brick and mortar retailers cannot also make sense. We do not view it as absurd or irrational for Congress to address discrimination by online retailers in a different manner than it addresses discrimination by brick and mortar retailers. These are, after all, two distinct types of retailers, each subject to a disparate bundle of economic and business concerns. The central role websites play in modern commerce cannot change that they are their own animal, a creature unlike brick and mortar establishments.

Because brick and mortar stores conduct business differently than do retail websites, the type and extent of the burdens anti-discrimination measures impose on a business will necessarily differ depending on whether the business is operating through a physical storefront or a purely digital one. Given the different burden-benefit calculus that would apply in determining how to impose accessibility requirements on these two different types of retailers, it would not be an absurd result that Title III addresses only physical retailers, and that the question of how to properly balance the benefits and burdens of imposing similar requirements on purely digital retailers remains for Congress to separately consider. We thus conclude that it would not be an absurd result to interpret Title III as treating transactions differently depending on whether they are purely digital or have a physical component, and that avoiding an absurd result therefore cannot drive our interpretation of the language at issue….

The “it would not be an absurd result” standard of jurisprudence is an interesting one.

The opinion calls out Congress and the DOJ for twiddling their thumbs as the statutory interpretation question has vexed courts, businesses, disabled users, and litigants. The court takes the controversial jurisprudential approach of inferring that this long-term regulatory inaction means that the regulators are fine with the contrary interpretation:

[the DOJ] has opted not to issue any regulations or formal guidance to this effect, even after repeated requests from Congress that the DOJ do so. This weighs against, not in favor, of Martinez’s proposed interpretation…

Congress and the DOJ have long been aware of the confusion in the courts regarding whether and when a website can be considered a “place of public accommodation,” but have chosen not to clarify the issue through amendments to the statute or additional rulemaking. The federal circuit split began in the 1990’s…

no later than 2010, Congress and the DOJ (1) both recognized the need to clarify whether and under what circumstances a website might constitute a “place of public accommodation,” and (2) agreed that such clarification should take a broad and inclusive approach. The only conclusion we can draw from their failure in the 12 years that followed to provide any such clarification through regulation or statute is that neither officially endorses this approach. We cannot attribute this inaction to Congress’s difficulty with or reluctance to draft laws specifically addressing websites…

Congress’s failure to provide clarification in the face of known confusion—and, to a lesser extent, the DOJ’s similar failure—is not a reason for us to step in and provide that clarification. To the contrary, it is a reason for us not to do so. This is particularly true, given that providing clarification in the manner Martinez requests could have sweeping effects far beyond this case, none of which has been the subject of legislative fact-finding…

Ours is not to draft a law that chooses from among these various goals; ours is to interpret the law as written, an enterprise in which we are guided by legislative intent. We ultimately conclude that the language of the statute, when considered in the context of Congress’s failure to act and the DOJ’s silence in terms of formal guidance, does not permit us to adopt an interpretation of the statute that is not dictated by its language, especially in the face of the legislative and agency inaction described above.

By publicly shouting F-U to Congress and the DOJ, the opinion may force the regulators to finally respond to the jurisprudential chaos (indeed, I wonder if forcing a response was the drafter’s goal?). I also imagine this decision will be appealed and not all courts will agree with this case’s analysis. As a result, I would be shocked if this opinion is the final word on this matter.

Case citation: Martinez v. Cot’n Wash, Inc., 2022 WL 3025828 (Cal. App. Ct. August 1, 2022)

UPDATE: Compare Walters v. Fischer Skis U.S., LLC, 2022 WL 3226352 (N.D.N.Y. Aug. 10, 2022): “courts throughout this Circuit have found that even standalone websites fall within the statutory definition of a public accommodation under the ADA….These decisions indicate that a brick-and-mortar presence is not necessary.”

and

Tavarez v. Moo Organic Chocolates, LLC, 2022 WL 3701508 (SDNY Aug. 26, 2022): “The language surrounding the term ‘place of public accommodation’ supports the conclusion that Title III encompasses websites, regardless of their connection to a brick-and-mortar location…To limit the ADA’s reach to a point short of goods and services that are only available on the Internet, where much if not most American consumer research and purchasing now occurs, would contravene Congress’ clearly-stated purpose of bringing disabled individuals into the economic mainstream of American life.”

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