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.