Andrews v. Blick Art Materials, LLC (268 F. Supp. 3d 381, 2017)

United States District Court for the Eastern District of New York 2017-08-01

The Public Health and Welfare

Citations

Full opinion text

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.. ,385

II. Factual Allegations... 386

III. Legal Standard. . .386

IV. .Law...387

A. Americans with Disabilities Act...387

1) Third, ’Sixth, Ninth, and Eleventh Circuit Precedent.. .388

2) First and Seventh Circuit Precedent... 390

3) Second Circuit Precedent... 391

4) The ADA’s Text and Structure... 393

5) The ADA’s Purpose.. ■ 395

6) Avoidance of Absurd Results. . .396

7) Plaintiff States a Claim Under the ADA...397

B. New York State Human Rights Law and New York State Civil Rights Law.. .398

C. New York City Human Rights Law.. .400

V. Defendant’s Remaining Arguments ...401

A. Primary Jurisdiction Doctrine ... 401'

B. Due Process... 403

VI. Conclusion.. .404

VII. Directions for Further Action in the Litigation... 405

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 tommrow..

Packingham v. North Carolina, 582 U.S. -, 137 S.Ct. 1730, 1736, 198 L.Ed.2d 273 (2017) (emphasis added). See also id. at 1737 (“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 briek-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 Dick-blick.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 dick-blick.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]f Dickblick.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 “[ojffer [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).

Ill, 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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 reasonáble 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 occupiéd 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 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 private 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.

Id. § 12181(7).

' If a website is a place of public accommodation under the conditions of the present case, a “failure to take such stéps as may be necessary to ensure that no individual with a disability is excluded” from the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of’ the website violates the law. The statute does not contain a definition of the term “place of public accommodation.” .

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

There is a split among the courts on the issue of whether only a physical structure •may be a “place” of public accommodation.

The Courts of Appeals for the Third, Sixth, Ninth, and Eleventh Circuits hold that the statute is unambiguous: “places of public accommodation” are physical structures, and the only goods and services that a disabled person has a “full and equal” right to enjoy are those offered at a physical location. Discrimination only exists if the discriminatory conduct has a “nexus” to the goods and services of a physical location.

They base their conclusion largely on the text of the statute, which lists physical locales as “public accommodations.” Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d Cir. 1998) (“The plain meaning of Title III is that a public accommodation is a place.... This is in keeping with the host of examples of public accommodations provided by the ADA, all of which refer to places.”); Peoples v. Discover Financial Services, Inc., 387 Fed.Appx. 179, 183 (3d Cir. 2010) (“Our court is among those that have taken the position,that the term [public accommodation] is limited to physical accommodations.”); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010-11 (6th Cir. 1997) (en banc) (“As is evident by § 12187(7), a public accommodation is a physical place and this Court has previously so held.”); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (“Title III provides an extensive list of ‘public accommodations’ .in- § 12181(7) ... All the items on this list, however, have something in common. They are actual, physical places where goods or services are open to the public, and places where the public gets those goods or services .... [T]his context suggests that some connection between the good or service complained of and an actual physical place is required.”); Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279, 1282 (11th Cir. 2002) (“Title III encompasses a claim involving telephonic procedures that, in this case, tend to screen out disabled persons from participation in a competition held in a tangible public accommodation.”).

This narrow physical approach means, in practice, that the inaccessible website of a brick-and-mortar retail store could run afoul of the ADA if the website’s inaccessibility interferes with the “full and equal enjoyment” of the goods and services offered at the physical store, but a business that operates solely through the Internet and has no customer-facing physical location is under no obligation to make their website accessible. In a case against the retail giant Target concerning the accessibility of its website, Target.com, a district court in the Ninth Circuit held:

Target.com also allows a customer to perform functions related to Target stores. For example, through Target.com, a customer can access information on store locations and hours, refill a prescription or order photo prints for pick-up at a store, and print coupons to redeem at a store.... [T]he court .finds that'to the extent that plaintiffs allege that the ■ inaccessibility of Target.com impedes the full and equal enjoyment of goods and services offered in Target stores, the plaintiffs state a claim, and the motion to dismiss is denied. To the extent that Target.com offers information and services unconnected to Target stores, which do not affect the enjoyment of goods and services offered in Target stores, the plaintiffs fail to state a claim under Title III of the ADA.

See Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946, 949-66 (N.D. Cal. 2006) (emphasis added); see also Gil v. Winn Dixie Stores, Inc., 242 F.Supp.3d 1315, 1321, 2017 WL 2609330, at *5 (S.D. Fla. Mar. 15, 2017) (denying defendant’s motion for judgment as a matter of law because “it appears that, just as in Target Corp., Winn-Dixie’s website is heavily integrated with, and in many ways operates as a gateway to, Winn-Dixie’s physical store locations,” but declining to “determine .whether Winn-Dixie’s website is a public accommodation in and of itself.”); Young v. Facebook, Inc., 790 F.Supp.2d 1110, 1115 (N.D. Cal. 2011) (“Under controlling Ninth Circuit authority, ‘places of public accommodation’ under the ADA are limited to actual physical spaces .,, Face-book operates only in cyberspace, and is thus is not a ‘place of public accommodation’ as construed by the Ninth Circuit. While Facebook’s physical headquarters obviously is a physical space, it is not a place where the online services to which [the plaintiff] claims she was denied access .-are offered to the public,”); Gomez v. Bang & Olufsen Am., Inc., 2017 WL 1957182, at *4 (S.D. Fla. Feb. 2, 2017) (“All the ADA requires is that, if a retailer chooses to have a website, the website cannot impede a disabled person’s full use and enjoyment of the brick-and-motar [sic] store.... Because Plaintiff has not alleged that Defendant’s website impeded his personal use of Bang and Olfusen’s retail locations, his ADA claim must be dismissed.”).

2) First and Seventh . Circuit Precedent

By contrast, the Courts of Appeals for the First and Seventh Circuits, while also holding that the ADA is unambiguous, reach the conclusion that “places of public accommodation” need not be physical structures, and discrimination may occur when the goods or services of a “place of public accommodation” are enjoyed by customers who never visit a physical location. These courts have primarily relied on the use of the word “of’ — as compared to “at” or “in” — in 42 U.S.C. § 12182(a), and the inclusion of “travel service” in the statute’s list of public accommodations, a type of business at the time of the statute’s passage that often did not have a physical location.

In Carparts Distribution Center,, Inc. v. Automotive Wholesaler’s Ass’n of New England, Inc., the Court of Appeals for the First Circuit held:

By including “travel service” among the list of services considered “public accommodations,” Congress clearly contemplated that “service establishments” include providers of services which do 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 ... To exclude this broad category of businesses from the reach of Title III and limit the application of Title III to physical structures which persons must enter to obtain goods and services would run afoul of the purposes of the ADA and would 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.

87 F.3d 12, 19-20 (1st Cir. 1994) (emphasis added).

In Doe v. Mutual of Omaha Insurance Co., the Court of Appeals for the Seventh Circuit held that the

core meaning of [section 302(a) of Title III of the ADA], 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, 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.

179 F.3d 557, 559 (7th Cir. 1999) (internal citation omitted). The same court held in Morgan v. Joint Administrative Board, Retirement Plan of the Pillsbury Co. and American Federation of Grain Millers, AFL-CIO-CLC:

The defendant asks us to interpret “public accommodation” literally, as denoting a physical site, such as a store or hotel but we have already rejected that interpretation. An insurance company can no more refuse to sell a policy to a disabled person over the Internet than a furniture store can refuse to sell furniture to a disabled person who enters the store. The site of the sale is irrelevant to Congress’s goal of granting the disabled equal access to sellers of goods and services. What matters is that the good or service be offered to the public.

268 F.3d 456, 459 (7th Cir. 2001) (internal citations omitted).

Based on these precedents, a district court in the First Circuit concluded that “public accommodations” falling within the enumerated categories have an obligation to make their websites accessible even if they do not have any physical locations:

ADA covers the services ‘of a public accommodation, not services “at” or “in” a public accommodation. 42 U.S.C. § 12182(a). This distinction is crucial. Consequently, while the home is not itself a place of public accommodation, entities that provide services in the home may qualify as place of public accommodation. Under Defendant’s reading of the statute, many businesses that provide services to a customer’s home — such as plumbers, pizza delivery services, or moving companies — would be exempt from the ADA. The First Circuit held in Carparts that such an interpretation is absurd. Under the Car-parts decision, the-Watch Instantly web site is a place of public accommodation and Defendant may not discriminate in the provision of the services of that public accommodation — streaming video— even if those services are accessed exclusively in the home.

Nat’lAss’n of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196, 201-02 (D. Mass. 2012) (citations omitted) (emphasis added).

3) Second Circuit Precedent

The leading ease in the Court of Appeals for the Second Circuit on this issue, Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28 (2d Cir. 1999), opinion amended on denial of reh’g, 204 F.3d 392 (2d Cir. 2000). It indicates that the court shares the view of the First and Seventh Circuits. In Pallozzi, a* couple alleged that their application for a joint life insurance policy had been denied by Allstate because of their mental disabilities.

The question on appeal was whether Title III of the ADA “regulate[s] insurance underwriting practices.” Pallozzi, 198 F.3d at 31. The court started with the text of Title III, noting that the statute named an “insurance office” as a “public accommodation”- and that “[sjection 302(a) bars a ‘place of public accommodation’ from ‘dis-criminat[ing]' against [an individual] on the basis of disability - in the full and equal enjoyment of [its] goods [and] services.’ ” Id. (quoting. 42 U.S.C. §§ 12181(7)(F), 12182(a)) (alterations and emphases in original). Rather than taking a literal approach to the term “insurance office,” it sensibly held that the

most conspicuous “goods” and “services” provided by an ’“insurance office” are insurance policies. Thus, the prohibition imposed on a place of public accommodation from discriminating against a disabled customer in the enjoyment of its goods and services appears to prohibit an insurance office from discriminatorily refusing to offer its policies to disabled persons....

Id. (citing Doe v. Mutual Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999)).

Allstate argued that the ADA was only concerned with ' physical access because Congress defined “the term ‘public accommodation’ to include ‘insurance office[sJ,’ not insurance companies,” and that “because insurance policies are not actually used in places of 'public accommodation, they do not qualify as goods and services ‘of [a] place of public accommodation.” Id. at 32 (quoting 42 U.S.C. § 12181(7)(F) and 42 U.S.C. § 12182(a)) (emphases in original). The court- rejepted this argument as

unpersuasive. Title Ill’s mandate that the disabled be accorded “full and equal enjoyment of the goods, [and] services ... of any place of public accommodation," [42 U.S.C. § 12182(a) ], suggests to us that the statute was meant to guarantee them more than mere physical access.

Id. at 32 (emphasis added). It then cited to a quotation from Carpa/rts:

To ... limit-the application of Title III to physical structures .., would 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.- •.

Id. (quoting Carparts, 37 F.3d at 20) (emphasis added). .

The Second Circuit Court of Appeals emphasized that it is the sale of goods and services to the public, rather than how and where that sale is executed, that is crucial when determining if the protections of the ADA are applicable:

We find no merit in Allstate’s contention that, because insurance policies are not used in places of public accommodation, they do not qualify as goods or services “of a place of public accommodation.” The term “of' generally does hot mean “in,” and there is no indication that Congress intended to employ the term in such an unorthodox manner .in Section 302(a) of Title III. Furthermore,.many of the private entities that Title III defines as “public accommodations” — such as a “bakery, grocery store,, clothing store, hardware store, [or] shopping center,” 42 U.S.C. § 12181(7)(E), as well as a “travel service, ... gas station, office of an accountant or lawyer, [or] pharmacy,” id. § 12181(7)(F) — sell goods and services that are ordinarily used outside the premises. On Allstate’s interpretation, a bakery’s refusal to sell bread to a blind person would fall outside the scope of the statute, We see no basis for reading the statute so narrowly.

Id. at 33.

The court “base[d] its holding on the statutory text,” without resort to the “ADA’s legislative history and the interpretive guidelines issued by the Department of Justice.” Id. Its .final conclusion was that Title III “unambiguously covers insurance underwriting in at least some circumstances.” Id.

. Allstate did not reach the precise question at issue in the present case. The court declined to address Allstate’s argument that the “ADA does not reach underwriting” because the ADA prohibits discrimination by “insurance offices,” and “underwriting decisions are made by company management, rather than by insurance offices, which are simply the places where people go to purchase insurance” because the issue was “not properly part of the appeal before” it. Pallozzi, 204 F.3d at 393. In Allstate, the Court of Appeals took a figurative, rather than literal, approach to the term “insurance office,” observing that the “most conspicuous ‘goods’ and ‘services’ provided by an ‘insurance office’ are insurance policies,” Pallozzi, 198 F.3d at 31, thus implicitly rejecting the argument it declined to reach on Allstate’s motion for, a rehearing.

The Allstate court also cited Carparts and Doe favorably — two cases that counsel against narrow readings óf what a “place of public accommodation” is and what constitutes a “good” or “service” “of’ such a place. Carparts, 37 F.3d at 19-20; Doe, 179 F.3d at 559. These cases looked to the purpose of the ADA and decided that a crabbed reading of its language did not comport with the ADA’s remedial goal.

The Court of Appeals for the Second Circuit itself characterized its holding in Pallozzi as being “that an insurance office in its dealings with the public is a ‘place of public accommodation’ and is regulated by Title III.” Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 n. 8 (2d Cir. 1999).

The issue being contested now — the importance of a link between a “place” and the goods and services being offered by the company — was given virtually no import by the court. Neither the decision by the appellate court nor the district court decision it overturned specified where any of the conduct giving rise to the lawsuit took place, including if the plaintiffs went to an insurance office, if they called an insurance office from their homes, if the persons they spoke to at Allstate worked out of an office open to the public, or -if the persons at, Allstate who made the decision to refuse to sell them another policy were working out of an insurance office open to the public. Without elaboration, the court simply stated that “[t]here is no dispute that Plaintiffs in this case have” “a nexus to a place of public accommodation.” Pallozzi, 198 F.3d at 33 n. 3.

This district court, as it must, adopts the Second Circuit’s sensible approach to the ADA. It is unambiguous that under Title III of the ADA, dickblick.com is a place of public accommodation. Blick is prohibited from discriminating against the blind by failing to take the steps necessary to ensure that the blind have “full and equal enjoyment” of the goods, services, privileges, advantages, facilities, or accommodations of its website — provided that taking such steps would not impose an undue burden on Blick or fundamentally alter the website.

This decision is consistent with the opinions of the other district courts in this circuit which have analyzed this, question. Nat’l Fed’n of the Blind v. Scribd Inc., 97 F.Supp.3d 565, (D. Vt. 2015). (Title III of the ADA covers the website of a company without any physical locations); Markett v. Five Guys Enterprises LLC, 1:17-cv-00788-KBF, EOF No. 33, Order on Def.’s Mot. to. Dismiss. (S.D.N.Y. July 21, 2017), at 4 (“[T]he text and purposes of the ADA, as well as the breadth of federal appellate decisions, suggest that defendant’s website is covered under the ADA, either as its own place of public accommodation or as a result of its close relationship as a service of defendant’s restaurants, which indisputably are public accommodation under the statute.”).

4) The ADA’s Text and Structure

The text and structure of the statute compel the Scribd interpretation. The title of Title III is “Public Accommodations and Services Operated by Private Entities,” not “Places of Public Accommodation and Services Operated by Private-Entities.” 42 U.S.C. subch. III. The title of the section prohibiting discrimination is “Prohibition of Discrimination by Public Accommodations,” not “Prohibition of Discrimination by or in Places of Public Accommodation.” 42 U.S.C. § 12182. The categories- of private entities covered by the subchapter are listed under the heading “Public accommodation,” not “Places of public accommodation.” 42 U.S.C. § 12181(7).

When describing the public accommodations covered by the law, the statute uses a variety of different ' words, including “pláce,” “office,” and “establishment.” Id. When ' describing the entities that sell goods and provide services to the public, the word ‘‘place” is never used, and the statute makes evident that it covers every “sales or rental establishment”' and “service ' establishment.” 42 U.S.C. § 12181(7)(E)-(F).

While the statute defines “public accommodation,” it never defines the terms “place” or. “place of public , accommodation.” These choices indicate that the word “place” was not intended to limit the statute’s reach, but “that Congress likely used the word ‘place’ because there was no other less cumbersome way to describe businesses that offer those particular goods or services to the public.”' Scribd, 97 F.Supp.3d at 572.

The use of the word “facilities” throughout the statute bolsters this interpretation. A separate section within Title III, section 12183, “New construction and alterations in public accommodations and commercial facilities,” provides:

(a) Application of term

Except as provided in subsection (b) of this section as applied to public accommodations and commercial facilities, discrimination for purposes of section 12182(a) of this title includes—

(1) a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990, that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection in accordance with standards set forth or incorporated by reference in regulations issued under this subchap-ter; and

(2) with respect to a facility or part thereof that is altered by, on behalf of or for the use. of an establishment in a manner that affects or could affect the usability of the facility or part thereof, a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. Where the entity is undertaking an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity shall also make the alterations in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities where such alterations to the path of travel or the bathrooms, telephones, and drinking fountains serving the altered area are not disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General).

(b) Elevator

Subsection (a) of this section shall not be construed to require the installation of an elevator for facilities that are less than three stories or have less than 3,000 square feet per story unless the building is a shopping center, a shopping mall, or the professional office of a health care provider or unless the Attorney General determines that a particular category of such facilities requires the installation of elevators based on the usage of such facilities.

42 U.S.C. § 12183 (emphases added). The emphasized words show that in these provisions, the term “facility” refers to a building or physical structure.

The term “facility” is also used in 42 U.S.C. § 12182(a). There is a presumption “that identical words used in different parts of the same act are intended to have the same meaning,” though the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme” can overcome this presumption. Util. Air Regulatory Grp. v. E.P.A., — U.S. -, 134 S.Ct. 2427, 2441, 189 L.Ed.2d 372 (2014) (internal quotation marks omitted). In the present case, both the “same meaning” presumption and context indicate that the term “facility” refers to a building or physical structure in § 12182(a) as well.

Section 12183 specifies that “discrimination for purposes of section 12182(a) of this title includes” not making the identified alterations to new and existing, structures to fender them physically accessible. 42 U.S.C. § 12183 (emphasis added). These specific rules about physical accessibility are not the only way for a public accommodation to discriminate — “[t]he word ‘includes’ is usually a term of enlargement, and not of limitation.” Burgess v. United States, 553 U.S. 124, 131 n. 3, 128 S.Ct. 1572, 170 L.Ed.2d 478 (2008) (alteration and internal quotation marks omitted). Section 12182(a) lists the denial of the “full and equal enjoyment” of “facilities” of a place of public accommodation as one of several ways a public accommodation could discriminate against the disabled; a place of public accommodation is also prohibited from denying a disabled person the “full and equal enjoyment” of its “the goods, services, [], privileges, advantages, or accommodations.” 42 U.S.C. § 12182(a). The Act could have easily cabined the prohibition on discrimination to the goods, services, etc. of a “facility” of a “place of public accommodation,” or used the word “facility” instead of “place,” but it did not.

5) The ADA’s Purpose

This broad interpretation is proper because it is harmonious with the purpose of the ADA. Congress stated as a matter of public policy that the “Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.” 42 U.S.C. § 12101(a)(7). The purpose of the ADA is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Id. § 12101(b)(1); see PGA Tour, Inc. v. Martin, 532 U.S. 661, 674, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001) (“Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals.”). The ADA is a “broad mandate” with the “sweeping purpose” of “eliminate[ing] discrimination against disabled individuals” and “inte-grat[ing] them into the economic and social mainstream of American life;” “one of the Act’s most impressive strengths ... [is] its comprehensive character.” PGA Tour, 532 U.S. at 675, 121 S.Ct. 1879 (internal quotation marks omitted).

“As a remedial statute, the ADA must be broadly construed to effectuate its purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Noel v. New York City Taxi and Limousine Comm’n, 687 F.3d 63, 68 (2d Cir. 2012) (internal quotation marks omitted).

Blick’s suggested construction of Title III would contravene the ADA’s broad remedial purpose. Its view would exempt a huge — and growing — swath of mainstream American life based on the Internet from the Act’s requirements.

The “broad mandate” of the ADA and its “comprehensive character” are resilient enough to keep pace with the fact that the virtual reality of the "Internet is almost as important now as physical reality alone was when the statute was signed into law. That the meteoric rise of virtual reality through the Internet and its impact on communal and commercial affairs could not have been anticipated by Congress does not mean the law’s application to the Internet and website is ambiguous; “the fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.” Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (applying the ADA to state prisoners because of its “unambiguous statutory text” while rejecting petitioners’ argument that the ADA does not apply to state prisoners because Congress did not “envision that the ADA would be applied to state prisoners”); see also Enyart v. National Conference of Bar Examiners, Inc., 630 F.3d 1153, 1163 (9th Cir. 2011) (“[A]ssistive technology is not frozen in time: as technology advances, ... accommodations should advance as well.”).

6) Avoidance of Absurd Results

Applying Blick’s interpretation of Title III would violate the precept that a statute should be read, to avoid, “absurd” results. Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 368 (2d Cir. 2006). The defendant believes that the narrow interpretation of the court in Gomez v. Bang & Olufsen Am., Inc. is the correct one. See Def.’s Reply Mem. in Supp. of its Mot. to Dismiss, ECF No. 17, at 2-3. The Gomez court adopted the reasoning, of the Target court and held that an ADA claim premised on the inaccessibility of a website can survive a motion to dismiss if the website’s inaccessibility “impedes the plaintiff’s access to a specific, physical, concrete space, and establishes some nexus between the website and the physical, place of public accommodation.” Gomez, 2017 WL 1957182 at *3 (internal quotation marks and alteration omitted). As the court limited its holding in Target

to, the extent that plaintiffs allege that the inaccessibility of Target.com.-impedes the full.and equal enjoyment of goods and services offered in Target stores, the plaintiffs state a claim, and the motion to dismiss is denied. To the extent that Target.com, offers information and services unconnected to Target stores, which do not affect the enjoyment of goods and, services offered in Target stores,, the plaintiffs fail to state a claim under Title III of the ADA.

Target, 452 F.Supp.2d at 956.

Interpreting the statute in the Target way would require that only select aspects of Blick’s website and online presence be accessible to the blind. For . example, Blick would need to change its website to allow a blind person, to find, successfully complete, and use the email list that provides for in-store coupons, but would not need to do so for the email list that only provides online discounts. Blick would have to make accessible information about products available for in-store pickup, but would not have to do so for items . available only online, though presumably which item a category falls into could depend on the store selected for pick-up and the inventory it has on hand. Putting aside whether such a design for a website is even feasible, the unworkability of it seems plain.

The litigation in the Target case demonstrates the difficulties with Blick’s position. When the plaintiffs in Target initially moved for class certification, the court delayed in granting certification because of concerns about whether or not the putative class members would be able to state a cognizable injury; their declarations “ma[de] clear- that these are individuals who would prefer to shop online ... However, . stating, that class members would prefer to shop online is not sufficient to establish a nexus \ytth the stores for the purposes of the ADA.” Nat’l Fed’n of the Blind v. Target Corp., 2007 WL 1223755, at *4 (N.D. Cal. Apr. 25, 2007). The plaintiffs then filed supplemental .declarations. These declarations “satisfied” the court that the putative class members “were