[00:00:00] Speaker 00: Good morning. [00:00:00] Speaker 00: May it please the court? [00:00:01] Speaker 00: I'm George Murphy, appearing on behalf of Plaintiffs and Appellants Alita Guthrie and Aretha Guthrie. [00:00:07] Speaker 00: At council table is Amy Robertson, council for amici. [00:00:12] Speaker 00: And without further ado, I'd like to transfer the remainder of my time to her. [00:00:16] Speaker 07: OK. [00:00:17] Speaker 07: She's counselor for who? [00:00:19] Speaker 00: Amici parties. [00:00:21] Speaker 00: All of the amicus parties. [00:00:22] Speaker 07: OK. [00:00:24] Speaker 07: All right. [00:00:24] Speaker 07: So she'll be taking all the time. [00:00:26] Speaker 00: She will. [00:00:27] Speaker 07: All right, so we'll go back to 10 and start and come up, Ms. [00:00:30] Speaker 07: Robertson. [00:00:31] Speaker 00: Thank you. [00:00:32] Speaker 07: Thank you. [00:00:37] Speaker 05: Thank you, Your Honor, and may it please the Court. [00:00:39] Speaker 05: My name is Amy Robertson, and I represent the Disability Rights Education and Defense Fund and the other amici in this action. [00:00:46] Speaker 05: I'm going to attempt to reserve two minutes for rebuttal. [00:00:49] Speaker 05: OK. [00:00:49] Speaker 05: To answer the question posed by the court, yes, ALTA is a place of public accommodation under Title III of the ADA because it's a social services establishment that does business from an actual physical place, administering disability services in a physical office, and it's alleged to have failed to provide those services or refused to provide those services on the basis of disability. [00:01:12] Speaker 07: So I kind of follow things. [00:01:16] Speaker 07: It would appear that the young woman involved is presently in a place and receiving the services, but no one's claiming this is moot, correct? [00:01:29] Speaker 05: I have not seen a mootness argument raised on appeal. [00:01:32] Speaker 07: OK, but she is now in a suitable location is my understanding. [00:01:38] Speaker 07: Well, we don't go to the peanut gallery to ask questions. [00:01:42] Speaker 05: That is my understanding. [00:01:44] Speaker 05: I apologize, Your Honor. [00:01:45] Speaker 05: Yes. [00:01:46] Speaker 05: Okay. [00:01:48] Speaker 05: So go ahead. [00:01:50] Speaker 03: I do have a question along those lines, though. [00:01:52] Speaker 03: The complaint also seeks damages, which presumably would not necessarily be moot as opposed to the other claims. [00:02:09] Speaker 05: That's correct, Your Honor. [00:02:10] Speaker 05: The claims under Title III itself does not have a damages remedy, but there are live claims under both Section 504 of the Rehabilitation Act and the Unruh Civil Rights Act and others that do have damages remedies that would not be moot, whatever her services status would be at this time. [00:02:30] Speaker 05: Thank you, Your Honors. [00:02:31] Speaker 05: ALTA makes three arguments in its attempt to exclude itself from the coverage of Title III. [00:02:38] Speaker 05: It first argues that it doesn't provide social services at all. [00:02:41] Speaker 05: But this is belied by the language of its own briefing, including the supplemental brief, where it states that it determines eligibility, assesses needs, and coordinates vendor services for individuals with developmental disabilities, its clients. [00:02:55] Speaker 05: It also- I have a question. [00:02:57] Speaker 07: It sort of seems, I feel like the wire case or we or however you pronounce that is somewhat of an impediment to you in terms of, and obviously we're bound by our own precedent. [00:03:13] Speaker 07: I want to address that. [00:03:17] Speaker 07: It's occurred to me [00:03:19] Speaker 07: that this place of accommodation, the way that the statute is written, hasn't really quite kept up with technology. [00:03:30] Speaker 07: Were there other ways that ... I feel like we're trying to put a square peg into a round hole here. [00:03:38] Speaker 07: And I clearly [00:03:41] Speaker 07: think that when people don't get the services that they would be entitled to, they should have a way to sue. [00:03:47] Speaker 07: Is there another way to sue besides this particular statute, or does it have to be wedged into this place of accommodation, which seems a little hard to do for me? [00:03:59] Speaker 05: I'll probably take those in order. [00:04:01] Speaker 05: Why are in the end [00:04:03] Speaker 05: does not fit here. [00:04:05] Speaker 05: In wire, it's true there was a physical insurance office, but this court ultimately held that a benefit plan offered by an employer, and it was that disconnect where the benefit plan was being offered by the employer, a Title I entity, is not a good or service offered by a public accommodation at all. [00:04:23] Speaker 05: In contrast here, ALTA and the vendors are offering their services directly to the public. [00:04:29] Speaker 05: And while I know that this court and others has wrestled with, you know, for example, under Robles, what do you do about cyberspace? [00:04:36] Speaker 05: What do you do about this commercial? [00:04:38] Speaker 07: Yeah, it just doesn't seem like when the statute was written it anticipated that. [00:04:42] Speaker 07: And now we're trying to make it fit. [00:04:45] Speaker 05: That said, well, I think that this situation would have been recognizable to the drafters in 1990. [00:04:51] Speaker 05: as exactly covered by Title III. [00:04:54] Speaker 05: It's a social services establishment, which is in the definition. [00:04:58] Speaker 05: It has a physical place of business, which this court required and wired, not required in the First Circuit, but it is required here, and it exists here. [00:05:07] Speaker 05: And it's providing services, all of those disability administration services, and direct services through contract that are administered, that are happening from that physical place of business. [00:05:20] Speaker 05: So I think this is exactly what the drafters of Title III would have had in mind. [00:05:24] Speaker 07: Well, is there any other way to sue when you don't get what you're entitled to in a situation like this? [00:05:32] Speaker 07: Or does it have to be crammed into this statute? [00:05:37] Speaker 05: Respectfully, I would choose a different verb, but deferring to the court, the client has also raised claims under Title II of the ADA under Section 504 of the Rehabilitation Act, having alleged in the complaint that the entities receive federal funding, possible that in an [00:05:58] Speaker 05: analogous situation, there would be a claim against the state because the state has subcontracted its duties to individuals with developmental disabilities. [00:06:08] Speaker 07: The reason Amiki wrote, though, was because the version of title- Well, I think Amiki said they weren't taking a position, but you're clearly taking a position consistent with the appellant, so that's a little bit of a [00:06:23] Speaker 05: I think, candidly, we just didn't want to know the entire record, potentially. [00:06:27] Speaker 05: We wanted to address specific legal issues that we believe the district court got wrong and that we were very concerned would then be cited. [00:06:36] Speaker 05: Even if it's unpublished, it's right there in Westlaw. [00:06:39] Speaker 05: There are a number of very misguided holdings in the district court decision, and that's why we wrote. [00:06:45] Speaker 06: Is there anything in the law that said that coordination of care [00:06:50] Speaker 06: is not a social service that would make an office a social service center establishment? [00:06:55] Speaker 05: There is nothing in the law that says that. [00:06:57] Speaker 05: And in fact, I think one of the interesting things that one of the ways that ALTA is trying to escape coverage of Title III is to make this a textual distinction between administrative office-based services and hands-on services. [00:07:14] Speaker 05: There's no such distinction in the statute. [00:07:16] Speaker 05: And in fact, the statutory language [00:07:19] Speaker 05: prohibits discrimination in methods of administration. [00:07:22] Speaker 07: That's exactly what ALTA- Well, I guess you're saying there's nothing that prevents it, but I guess it appears that ALTA coordinates a provision of services to the public by other entities, right? [00:07:33] Speaker 07: Is that what ALTA does? [00:07:35] Speaker 05: That is among the things that it does. [00:07:37] Speaker 07: But I guess what's your best authority? [00:07:39] Speaker 07: You're saying nothing prevents it, but what's your best authority that ALTA is nonetheless covered by 42 USC 1218A? [00:07:48] Speaker 05: So the argument that I offered to Judge Koh was, in fact, an affirmative argument. [00:07:55] Speaker 05: Statutory language of Title III prohibits discrimination in methods of administration. [00:08:02] Speaker 05: And that's exactly what ALTA is doing. [00:08:04] Speaker 05: That is why what ALTA is doing in its physical offices is covered by [00:08:11] Speaker 05: 1218 to be the construction language. [00:08:17] Speaker 07: Let's say I don't agree with you on one side, but I agree with you that the 504 has to go back. [00:08:23] Speaker 07: I'm saying this hypothetically. [00:08:26] Speaker 07: Does 504 give you everything that you're asking for? [00:08:29] Speaker 05: Yes, 504 covers the same ground as Title III does. [00:08:36] Speaker 05: It prohibits discrimination and disability discrimination. [00:08:40] Speaker 05: It prohibits methods of administration that discriminate. [00:08:43] Speaker 05: I see I've wandered into my rebuttal time. [00:08:45] Speaker 07: Well, let me make sure before, if my colleagues want to ask you anything right now. [00:08:53] Speaker 06: No, thank you. [00:08:54] Speaker 07: Okay, so then we'll give you two minutes for rebuttal. [00:08:57] Speaker 06: Thank you. [00:08:57] Speaker 07: It goes fast. [00:09:11] Speaker 06: Let me ask, how the appellees are dividing up? [00:09:14] Speaker 06: Are you dividing up by subject matter, by entity? [00:09:16] Speaker 06: How are you dividing your 6-2-2 minutes? [00:09:20] Speaker 02: Well, it's certainly by subject matter. [00:09:25] Speaker 02: And then I'm, this is Anthony DiMeri. [00:09:27] Speaker 02: May it please the court? [00:09:28] Speaker 02: I'm here for ALTA, and I am addressing the issue of public accommodation via ALTA. [00:09:35] Speaker 02: My other council are here to address other issues. [00:09:38] Speaker 06: What other issues? [00:09:39] Speaker 06: I just want to know so we can know who to ask which questions to. [00:09:47] Speaker 02: I'll let them speak. [00:09:49] Speaker 07: OK, a group hug now. [00:09:50] Speaker 01: Come on up. [00:09:53] Speaker 01: Good morning, Your Honors. [00:09:54] Speaker 01: May it please the Court. [00:09:54] Speaker 01: I'm Jonathan Riddell, appearing on behalf of Strategies to Empower People and Tammy Smith. [00:10:00] Speaker 01: And my understanding is we have agreed amongst [00:10:04] Speaker 01: the appellee's counsel that will be addressing the initial issue that the court ordered the parties to be prepared to answer, which is whether or not Alta is a place of public accommodation. [00:10:16] Speaker 01: Mr. DiMaria is here to address that particular issue. [00:10:21] Speaker 01: And then my understanding is, well, I know what my role is here, but it's to answer any other additional questions that relate to my clients. [00:10:33] Speaker 01: And then I believe that my colleague here on behalf of, on my own, will be addressing any issues that are relevant directly to her clients as well. [00:10:46] Speaker 01: I hope that's answered your questions, Your Honor. [00:10:53] Speaker 07: Thank you. [00:10:53] Speaker 07: OK, Mr. DeMaria is back at the podium, and you can proceed. [00:10:57] Speaker 02: Thank you, Your Honors. [00:10:58] Speaker 02: I appreciated the questions. [00:11:00] Speaker 02: I listened carefully. [00:11:02] Speaker 02: You raised several issues. [00:11:06] Speaker 02: One question that has to be raised, you see it in the wire case, that's how I pronounce it, Your Honor. [00:11:12] Speaker 02: You see it in the other cases that followed, is there's got to be a nexus. [00:11:16] Speaker 02: So a lot of discussion has taken place here as to what may or may not happen in the building. [00:11:21] Speaker 02: Do you visit with the client? [00:11:22] Speaker 07: Well, did the district court address nexus? [00:11:26] Speaker 07: So to me, I thought the district court sort of kicked it out under the public accommodations. [00:11:32] Speaker 07: Yeah, nexus is also required, but was that even addressed down below? [00:11:38] Speaker 02: Well, Your Honor, I'd have a look at the exact language of the order, but you're not a qualifying place of public accommodation if there's no nexus to the alleged services. [00:11:48] Speaker 02: So you get there the same way, if that answers the question. [00:11:52] Speaker 06: But in wire, the employees got their insurance through the employer and not through [00:11:57] Speaker 06: the insurance company directly. [00:11:59] Speaker 06: So they never had to go to the insurance company directly. [00:12:02] Speaker 06: But here, there are allegations in the complaint that the appellant specifically went to ALTA's offices for their services. [00:12:12] Speaker 06: Your Honor, why do you? [00:12:13] Speaker 06: What is the lack of nexus here? [00:12:15] Speaker 06: They went there for their coordination of care services provided by ALTA. [00:12:18] Speaker 06: They went to the physical offices of ALTA. [00:12:21] Speaker 06: So where is the nexus gap here? [00:12:24] Speaker 06: Whereas I can clearly see it in wire. [00:12:26] Speaker 02: Well, actually, Your Honor, let me point it out to you. [00:12:29] Speaker 02: You see the same thing here. [00:12:31] Speaker 02: For instance, if you take a look at the cases, the Robles and the Target case, Target not even being on the appellate level, it was a direct access from defendant to defendant's other location. [00:12:43] Speaker 02: So in this case, there was a little leap in the statement made, and that is, [00:12:49] Speaker 02: that the services that they came to us for were provided to them in our office. [00:12:54] Speaker 02: That's not entirely correct. [00:12:55] Speaker 02: The services they sought in the region for a regional service to even exist for a regional center is to refer people for services at other places. [00:13:04] Speaker 06: Right. [00:13:05] Speaker 06: But what if I don't agree with your care coordination? [00:13:07] Speaker 06: You're falling back on your care coordination argument, right? [00:13:10] Speaker 06: Saying, we just provide coordination of care. [00:13:13] Speaker 06: We don't provide the care itself. [00:13:15] Speaker 03: That's right. [00:13:16] Speaker 06: That is your argument. [00:13:18] Speaker 06: Right. [00:13:19] Speaker 06: That doesn't make sense to me because the care you provide is the coordination of care. [00:13:25] Speaker 06: Otherwise, you wouldn't exist. [00:13:27] Speaker 06: If you were a non-entity and people went directly to the service vendors, you wouldn't exist. [00:13:32] Speaker 06: That is your role in this system. [00:13:34] Speaker 06: You provide the coordination to those vendors. [00:13:38] Speaker 06: That is your service, is it not? [00:13:41] Speaker 02: That is the service. [00:13:42] Speaker 02: But I think the suggestion is there would be no remedy unless you sued us directly. [00:13:47] Speaker 02: And that is, of course, not the case. [00:13:50] Speaker 02: There are other mechanisms to sue the service provider, whether it be a malpractice action. [00:13:54] Speaker 02: Not that they were raised here in many ways. [00:13:55] Speaker 06: But not if you're the one that allegedly violated the statute. [00:13:58] Speaker 03: Counsel, why does that matter? [00:14:01] Speaker 03: If a party has remedies against several entities or several types of remedies against one entity, it's not an answer to say one of them has to go away because they have another way to get what they need. [00:14:17] Speaker 03: I don't understand the relevance of saying that they could sue somebody else also. [00:14:22] Speaker 02: I was just in response to the question. [00:14:26] Speaker 02: The critical issue here is under Title III, [00:14:30] Speaker 02: The claim of ADA to be a public accommodation discrimination, there has to be a nexus between the service you're actually providing at the physical location. [00:14:39] Speaker 02: That is wire. [00:14:41] Speaker 02: That is what happened in Targa. [00:14:42] Speaker 02: That's what happened in Robles. [00:14:43] Speaker 02: There has to be something that's tied to your physical location for the service. [00:14:47] Speaker 02: The service it sought in this case and in the regional centers is not service to be provided at our location. [00:14:54] Speaker 02: We exist to refer people to another location. [00:14:56] Speaker 06: Okay, so your contention is that when the appellants went to the ALTA office, they were not seeking the care coordination services provided by ALTA. [00:15:05] Speaker 06: No, they were. [00:15:06] Speaker 02: That's your position. [00:15:06] Speaker 02: They were. [00:15:07] Speaker 02: They were. [00:15:07] Speaker 02: They were not seeking the care itself. [00:15:10] Speaker 02: They were seeking the referral. [00:15:11] Speaker 06: Right, but by your concession, if we find that the care coordination services would qualify the ALTA office as a social service center establishment, [00:15:22] Speaker 06: then you would satisfy the public accommodation requirement. [00:15:29] Speaker 02: I'm sorry. [00:15:29] Speaker 02: If I were to agree that we were social service center, then I guess it would satisfy. [00:15:36] Speaker 02: I do not agree that we are a social service location. [00:15:40] Speaker 02: Our purpose [00:15:41] Speaker 02: is solely to refer people to other locations to get the services. [00:15:45] Speaker 02: That is our purpose. [00:15:47] Speaker 02: So the complaint by the plaintiff. [00:15:48] Speaker 06: And so that is a service you provide to disabled or individuals with disabilities, correct? [00:15:54] Speaker 02: It is. [00:15:54] Speaker 06: And you're saying your offices should not be required to comply with the ADA, even though your service constituents have disabilities. [00:16:02] Speaker 06: But you're not required to comply with the ADA. [00:16:05] Speaker 06: Is that correct? [00:16:05] Speaker 06: Because you're not a place of public accommodation. [00:16:08] Speaker 02: Not at all, Your Honor. [00:16:09] Speaker 02: I'm saying the context of the point. [00:16:10] Speaker 06: But isn't that the next step? [00:16:12] Speaker 02: It is not. [00:16:13] Speaker 06: If you say, we are not a social service center establishment, we're not required to comply with ADA for our clients. [00:16:22] Speaker 02: Not at all, Your Honor. [00:16:23] Speaker 02: In this case, the claim, if you look specifically at the complaint, the complaint claim is that the service providers to whom they referred them discriminated against them. [00:16:33] Speaker 02: And the claim is that we should be essentially vicariously liable for the fact that we referred them there. [00:16:38] Speaker 06: No, there's also a separate claim against Ulta. [00:16:40] Speaker 02: And those are the facts that give rise to the claim. [00:16:42] Speaker 03: Counsel, isn't there a difference between not being covered by the statute and failure to state a claim because the allegations don't get you there? [00:16:55] Speaker 03: And it seems to me that certainly, even if you're a place of public accommodation, there may be a failure to state a claim for other reasons. [00:17:06] Speaker 03: But I'm having the same difficulty as Judge Koh, understanding why [00:17:12] Speaker 03: you're not a place of public accommodation, that's subject to the statute. [00:17:17] Speaker 02: Well, in this circumstance, the claim against us is not that we discriminated against her disability at our physical location for any particular purpose of her disability. [00:17:29] Speaker 02: For instance, I think the context you're looking for is [00:17:34] Speaker 02: If we had a phone service, and in order to coordinate our services so that we could refer you out, you had to call into our phone service, but the phone service did not allow for the hearing disabled or those who could not push the buttons, then it would be a nexus to our service. [00:17:49] Speaker 02: Or that coming into our building in order to get the services, we had some sort of an ADA violation. [00:17:55] Speaker 02: Then it would be a nexus. [00:17:57] Speaker 02: But in this circumstance, I tell regional centers that when you do your obligation to refer people out, [00:18:03] Speaker 02: to other locations for services. [00:18:05] Speaker 02: If they discriminate, you're vicariously liable solely because you're the one that referred them there. [00:18:10] Speaker 06: Well, no. [00:18:11] Speaker 06: If I look at paragraph 43 and 44 of the Second Amendment complaint, the allegation is specifically against ALTA and ALTA's policies in 2014. [00:18:20] Speaker 06: That preceded the involvement of STEP and OMO, which doesn't take place until 2016, 2017. [00:18:27] Speaker 06: I'm not commenting on the merits of these allegations, right? [00:18:30] Speaker 06: There are other problems with this complaint. [00:18:33] Speaker 06: But at least as to this issue, the 2014 claim is against Ulta. [00:18:42] Speaker 06: And ALTA's policy. [00:18:43] Speaker 02: But the obligation of ALTA's policies, the obligation of our activities is to make the referral out to the provider. [00:18:51] Speaker 02: There's no allegation that we didn't make the referral. [00:18:53] Speaker 02: The allegation is that we made referrals that did not work or that people did not comply with their obligations. [00:18:59] Speaker 07: I have a question. [00:19:01] Speaker 02: Yes. [00:19:01] Speaker 07: So the Tenth Circuit in Leverson versus Octopharma, Plasma, [00:19:08] Speaker 07: defined a service establishment as a place of business or a public or private institution that by its conduct or performance assists or benefits someone or something or provides useful labor without producing a tangible good for a customer or a client. [00:19:30] Speaker 07: If that were the definition in the Ninth Circuit, do the defendants in this case come within that definition? [00:19:43] Speaker 02: I think that definition doesn't go far enough to tie us because the question is do we do one one measure of referral and that we assist in referring to an outside service. [00:19:55] Speaker 07: So it's closer. [00:19:56] Speaker 02: It's closer. [00:19:57] Speaker 02: Definitely closer. [00:19:58] Speaker 02: I would agree. [00:19:59] Speaker 07: So then would your argument be that WIRE is limiting from us adopting that definition? [00:20:08] Speaker 02: I think all of the decisions, WIRE and Robles, are limiting because of the lack of the nexus to the claim. [00:20:17] Speaker 02: The nexus of the claim is that the people to whom you referred us discriminated against us. [00:20:24] Speaker 02: You see that in the 70s paragraphs, I think 99 to 102. [00:20:28] Speaker 02: And in that case, [00:20:29] Speaker 02: all of the decisions we see. [00:20:31] Speaker 02: There is nothing that is extended from one person referring to another. [00:20:37] Speaker 02: By the way, just so I could get it on the record, in the Castle case that was referred to, that is a prison case where the state, there is a federal statute tying them to that, would not apply. [00:20:47] Speaker 07: There's nothing there. [00:20:48] Speaker 07: Your argument, I'm trying to understand your argument. [00:20:52] Speaker 07: Sure. [00:20:52] Speaker 07: If an entity discriminates against an individual in violation of the ADA, but [00:20:59] Speaker 07: is not a place of public accommodation, may the individual sue the entity under some other statute? [00:21:09] Speaker 02: I would believe so. [00:21:11] Speaker 07: And what statute would that be? [00:21:13] Speaker 02: Well, then I have to line up my client on a case. [00:21:19] Speaker 07: Well, like 504? [00:21:20] Speaker 07: Is that closer here? [00:21:22] Speaker 02: 504 of course is closer. [00:21:24] Speaker 02: We know that's rehabilitation and not a Not as far as say a school IEP However, we know that on 504 there has to be a deliberate indifference our argument, which okay that goes to the merits that does that okay, so Let me find out if my colleagues. [00:21:41] Speaker 07: We've taken you over. [00:21:42] Speaker 07: I said, but do either of my colleagues have additional questions No, thank you. [00:21:49] Speaker 02: No [00:21:49] Speaker 02: Thank you very much. [00:21:49] Speaker 02: I appreciate your time and your questions. [00:21:51] Speaker 07: All right. [00:21:51] Speaker 07: Thank you. [00:21:52] Speaker 07: So we'll go to, uh, it looks like Ms. [00:21:55] Speaker 07: Williams is approaching and you have two minutes. [00:21:58] Speaker 04: Good morning, your honors. [00:21:59] Speaker 04: May it please the court and good morning. [00:22:02] Speaker 04: Andrew Williams on behalf of on my own independent living services and individual defendants and appellees, Mary McClade and Michelle Ramirez. [00:22:11] Speaker 04: I don't want to be labor what we've already discussed here. [00:22:14] Speaker 04: I just want to point out some of the issues that are particular to OMO in this case. [00:22:19] Speaker 04: And first, with regard to the Title III claim, OMO is also not a place of public accommodation. [00:22:26] Speaker 04: There is actually no physical office where anyone comes to receive goods or services, so we never get past that first step with OMO. [00:22:34] Speaker 04: And the second portion of that is that the second amended complaint doesn't allege that the appellants ever went to a physical place to receive goods or services that is operated by OMO. [00:22:44] Speaker 04: The SAC simply says that- But you're factually a little bit different. [00:22:48] Speaker 07: What about 504 though? [00:22:50] Speaker 04: So, regardless of what may or may not be considered the [00:22:56] Speaker 04: respect to the district court's opinion and how it was written, there still is no claim under the Rehabilitation Act for two reasons. [00:23:03] Speaker 04: First, OMO does not receive federal funding. [00:23:07] Speaker 04: And two, the way that the SAC was written, they did not claim discrimination based solely on disability. [00:23:14] Speaker 04: So with regard to federal funding, OMO, as is said in the second amended complaint, the opening brief, and in the amicus brief, OMO receives its funding from ALTA. [00:23:25] Speaker 04: not directly from the federal funding. [00:23:27] Speaker 04: And there is case law, Supreme Court case law, it's the disabled or not disabled, Paralyzed Veterans of America case from the Supreme Court that says that money has to be directly allocated in order for it to fall under 504. [00:23:42] Speaker 04: And in this case, that is not what is going on. [00:23:44] Speaker 04: OMO is receiving its funding from ALTA. [00:23:48] Speaker 06: I agree that Omo is in a different situation than the other two, but I did have a question for you, and you agree that the Supreme Court has said that public accommodation should be construed liberally, correct? [00:23:58] Speaker 06: Yes. [00:24:03] Speaker 04: So I actually, well, I don't like to mince anyway, but unless this court has any further questions, I'm happy to relay. [00:24:10] Speaker 07: We do not appear to, thank you. [00:24:11] Speaker 07: No, thank you. [00:24:12] Speaker 04: Thank you. [00:24:14] Speaker 07: All right, Mr. Riddell is approaching. [00:24:24] Speaker 01: Good morning again, justices. [00:24:29] Speaker 07: There is no justice on the Ninth Circuit. [00:24:31] Speaker 07: I'm sorry, judges. [00:24:35] Speaker 01: I'm sorry. [00:24:37] Speaker 01: So getting back to the questions that you were recently directed to on my own counsel with respect to where, the issue there under Title III is whether or not in this circuit [00:24:52] Speaker 01: whether the places are physical places, were goods or services? [00:24:56] Speaker 06: I'm sorry. [00:24:57] Speaker 06: Since we got a minute and 40 seconds, I'm going to go ahead and jump to my question, if you don't mind. [00:25:01] Speaker 06: Paragraph 137 of the Second Amendment complaint alleges that STEP physically provided necessary service to plaintiffs on site directly out of their offices and alleges that the appellants met with STEP staff at STEP's offices for the purposes of getting their services from STEP. [00:25:19] Speaker 06: So why aren't those allegations sufficient? [00:25:21] Speaker 01: Well, because that very same complaint, Your Honor, at 4ER 637. [00:25:28] Speaker 06: Can you just cite the paragraph number? [00:25:30] Speaker 06: That'll be easier for me to find. [00:25:32] Speaker 01: Paragraph 23 of the second amended complaint. [00:25:34] Speaker 06: OK. [00:25:35] Speaker 06: States that step is a private provider of services that could quote not initiate or provide any services I don't think you're looking at the second amended complaint My paragraph 23 says vendors may not initiate or provide any new or updated services for clients until a regional center has issued a duly executed authorization of purchase services Is there a different number? [00:25:55] Speaker 01: I apologize on there is a section of the second amendment complaint that says what I just quoted and [00:26:00] Speaker 01: I have double sites in my notes here. [00:26:04] Speaker 01: That was where I was going next, Your Honor, was that vendors, i.e. [00:26:08] Speaker 01: STEP and on my own, may not initiate or provide any services for clients until a regional center has issued a duly executed authorization to purchase services. [00:26:20] Speaker 01: And as a result of that, [00:26:23] Speaker 01: and on my own as vendors are not open to the public. [00:26:26] Speaker 01: They are not places where the public comes to get those goods and services. [00:26:31] Speaker 06: Your argument is the specific group of disabled individuals who are referred. [00:26:37] Speaker 06: Is that your argument you're making now? [00:26:38] Speaker 01: It has to be okay. [00:26:40] Speaker 06: How is that any different than a homeless shelter? [00:26:43] Speaker 06: Those also get referrals senior citizen center also get referrals based on certain criteria Secondary undergraduate postgraduate private school also have separate admissions How are you different from those? [00:26:57] Speaker 01: Well by law? [00:26:58] Speaker 01: We're what's defined as a social service center. [00:27:01] Speaker 01: We are we don't fall within that definition. [00:27:05] Speaker 01: I don't think [00:27:05] Speaker 01: Moreover, Your Honor, the second amended complaint, this whole case is about the motion to dismiss, and it's about the sufficiency of the allegations in the second amended complaint. [00:27:16] Speaker 06: But answer my question, because that is your defense now, right? [00:27:20] Speaker 06: That you have a specific population that has to meet a criteria to be eligible for your services. [00:27:26] Speaker 06: How is that any different? [00:27:28] Speaker 06: then a homeless shelter, then a senior citizen center. [00:27:30] Speaker 06: All of those people are equally referred, have specific criteria that they meet. [00:27:35] Speaker 01: Because we have to enter into, and the second amendment complaint also references this, we have to enter into contracts after receiving a referral. [00:27:43] Speaker 01: So the individual that needs services goes to the regional center. [00:27:48] Speaker 01: The regional center can refer that individual to on my own, or they could refer that individual to strategies to empower people. [00:27:57] Speaker 01: or another vendor. [00:27:59] Speaker 06: If they don't- Can you tell me- I'm sorry to interrupt you. [00:28:01] Speaker 06: If they don't- Tell me about your constituent clients. [00:28:06] Speaker 06: Are they individuals with disabilities? [00:28:08] Speaker 01: That's correct. [00:28:09] Speaker 06: And you're saying you're not required, as a service provider, to individuals with disabilities to comply with ADA, that your offices need not comply with ADA? [00:28:18] Speaker 01: That is not what I'm saying, Your Honor. [00:28:21] Speaker 01: We're saying that the law of this land is that [00:28:28] Speaker 01: The place has to be a place of public accommodation, where the public goes to get those goods and services. [00:28:34] Speaker 01: Here, the public cannot come in to STEP and demand to receive services or ask for services. [00:28:41] Speaker 01: STEP would not get paid for services in the absence of a referral. [00:28:45] Speaker 01: There is a process that needs to be followed. [00:28:47] Speaker 01: The individual needs to go to a regional center and get a referral. [00:28:51] Speaker 01: Once that referral is made, then [00:28:56] Speaker 01: one of the vendors can provide those services. [00:28:58] Speaker 01: But here, as it's alleged in the complaint, again, it goes back to what's alleged in the complaint. [00:29:03] Speaker 07: So once there's a referral, then you are a place of public accommodation? [00:29:07] Speaker 01: I'm sorry? [00:29:08] Speaker 07: So once a referral is made, you are a place of public accommodation? [00:29:12] Speaker 01: No, not under the definition. [00:29:13] Speaker 01: We are not a place of public accommodation. [00:29:18] Speaker 07: OK, any additional questions? [00:29:20] Speaker 07: No, thank you. [00:29:21] Speaker 07: All right, thank you. [00:29:26] Speaker 07: All right, you have two minutes for rebuttal, but if we have additional questions, please continue to answer. [00:29:31] Speaker 05: Thank you, Your Honor. [00:29:33] Speaker 05: I will. [00:29:34] Speaker 05: Um, I'm going to maybe hop around a little, uh, Ulta argues that it just does referrals, but that actually skips over services that it admits it performs for people with disabilities before you get to the referral. [00:29:47] Speaker 05: So it has to do assessments. [00:29:49] Speaker 05: Um, it has, it does care coordination as case management. [00:29:52] Speaker 05: And these are all services that it provides directly to its consumers, to individuals with developmental disabilities. [00:30:00] Speaker 05: And those have a nexus that really is so tight with the physical place of public accommodation, the physical office, that nexus almost isn't helpful here. [00:30:12] Speaker 05: It's really like the nexus between the pizza and the pizza place, not the website and the pizza place. [00:30:17] Speaker 07: What about Omo? [00:30:18] Speaker 07: They seem to be in a different posture. [00:30:20] Speaker 05: I would say based on the allegations in the complaint, OMO is the one place where the allegations don't reach meetings having happened on site. [00:30:31] Speaker 05: For ALTA and STEP, there are allegations in the second amended complaint that the plaintiffs... But you concede OMO is not a place of public accommodation? [00:30:39] Speaker 05: I do not concede that. [00:30:41] Speaker 05: Why not? [00:30:42] Speaker 05: Because it has a physical place. [00:30:45] Speaker 05: It provides services to people with disabilities. [00:30:48] Speaker 05: That place does have meetings with the public. [00:30:53] Speaker 05: I don't believe there are allegations in the second amended complaint that these specific individuals met on site at Omo. [00:31:01] Speaker 05: that doesn't take it out of that bucket for all purposes. [00:31:05] Speaker 05: I want to speak briefly about ALTA's continuing responsibility after it makes the referral. [00:31:14] Speaker 05: It's making a referral to vendors with which it has contracts, and that is covered in the explicit language of Title III. [00:31:23] Speaker 05: We cited CASEL versus Eurofresh because it interprets identical language in Title II, but the language of the statute covers this. [00:31:32] Speaker 05: ALTA is not allowed to discriminate directly or through contractual licensing or other arrangements. [00:31:40] Speaker 05: So when it subcontracts to provide the services that the DDS system requires it to provide, when it subcontracts with vendors, it remains liable for whatever the vendors do. [00:31:51] Speaker 05: That said, if I may make a final point, ALTA itself in the second amended complaint is accused of discriminating in its own services by [00:32:01] Speaker 05: refusing to provide services to the Guthrie's because Aleta Guthrie used a feeding tube. [00:32:06] Speaker 05: So that is their own policy, their method of administration administered from their physical offices, and it discriminated against the Guthrie's. [00:32:14] Speaker 05: If there are no further questions, I'm okay. [00:32:16] Speaker 05: Any further questions? [00:32:17] Speaker 05: No, thank you. [00:32:17] Speaker 07: No, thank you. [00:32:18] Speaker 07: Thank you both for your argument. [00:32:19] Speaker 07: This matter will stand submitted. [00:32:21] Speaker 07: Thank you.