Antitrust Law Daily Wrap Up, FRANCHISING & DISTRIBUTION—S.D.N.Y.: Restaurant franchisor’s use of touchscreen beverage dispensers doesn’t violate ADA, (Dec 10, 2015)

By Michael Menzhuber, J.D., LL.M.

A motion to dismiss a claim that a restaurant franchisor violated Title III of the Americans with Disabilities Act (ADA), by installing touchscreen beverage dispensers that could not be operated by blind individuals without assistance, was granted by the federal district court in New York City. Because the federal ADA claim was dismissed, the court declined to exercise jurisdiction over the plaintiffs’ remaining state law claims (West v. Moe’s Franchisor, LLC, December 9, 2015, Pauley, W.).

Moe’s Franchisor, LLC owns, operates, franchises, and leases restaurants nationally. Many of the restaurants use Freestyle machines that permit customers to dispense Coca-Cola beverages by using a touch-screen interface. Because the Freestyle machines lack “adaptive features,” individuals who are blind are unable to use them independently.

Mary West and Patricia Diamond, who are blind, visited a Moe’s restaurant that used Freestyle machines. After purchasing a soda and receiving a plastic cup, they requested further assistance but were only directed to the location of the Freestyle machine.

West and Diamond, on behalf of themselves and a putative class of other blind individuals, brought an action against Moe’s that alleged discrimination under: (1) Title III of the ADA; (2) the New York State Human Rights Law (NYSHRL); and (3) the New York City Human Rights Law (NYCHRL). The basis for the plaintiffs’ complaint was that the touchscreen beverage dispensers in Moe’s restaurants denied them a full and equal opportunity to enjoy the services provided. In response, Moe’s filed a motion to dismiss for lack of standing and for failure to state a claim for relief.

American with Disabilities Act. To state a claim under Title III of the ADA, a plaintiff must allege that: (1) the plaintiff was disabled within the meaning of the ADA; (2) the defendant owned, leased, or operated a place of public accommodation; and (3) the defendant discriminated against the plaintiff by denying the plaintiff a full and equal opportunity to enjoy the services provided by the defendant. Moe’s did not dispute that the first two elements were satisfied but argued that the plaintiffs failed to plausibly allege that it did not provide blind individuals with auxiliary aids or services to assist with beverage dispensers.

While the plaintiffs did not argue that their claim was governed by the ADA’s auxiliary aids and services requirement, they alleged that Moe’s was required to provide blind individuals with the ability to use its freestyle machines independently. Specifically, the plaintiffs asserted that Moe’s was required to use technology in its freestyle machines, such as that used in ATMs.

The court noted that auxiliary aids and services are defined to include “qualified readers.” It further noted additional guidance provide by the Department of Justice implementing regulations which: (1) stated that the auxiliary aid requirement is flexible and that a public accommodation can choose among various alternatives so long as the result is effective communication; and (2) cited, as an example, that restaurants are not required to provide menus in Braille so long as waiters are made available to read the menu.

The court acknowledged the plaintiffs’ focus on the ADA’s regulations’ statement that places of public accommodation must take into account a disabled individual’s “privacy and independence.” However, it found the heightened privacy concerns implicated by the use of ATMs, which used a technology that plaintiffs argued Moe’s should employ with its freestyle machines, were not present with beverage dispensers.

Because it found nothing in the ADA or its implementing regulations that supported the plaintiffs’ argument that Moe’s must alter its freestyle machines to allow blind individuals to operate them without assistance, the court determined that effective assistance from Moe’s employees acting as “qualified readers” was sufficient for compliance with the ADA.

The court rejected the plaintiffs’ argument that Moe’s failed to provide “qualified readers” as auxiliary aids and service because their argument was based only on a single visit where they failed to receive requested assistance from a restaurant employee. Consequently, the court determined that the plaintiffs failed to state a claim under the ADA.

State human rights laws. The court noted that where federal claims are eliminated in the early stages of litigation, courts should generally decline to exercise pendent jurisdiction over remaining state law claims. Consequently, because the plaintiffs’ federal ADA claim was dismissed, the court declined to exercise jurisdiction over the remaining state law claims.

The case is No. 15cv2846.

Attorneys: Anne Melissa Seelig (Lee Litigation Group, PLLC) for Mary West. Charles H. Morgan (Alston & Bird, LLP) for Moe’s Franchisor, LLC.

Companies: Moe’s Franchisor, LLC

Cases: FranchisingDistribution NewYorkNews