IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-31018

EMMETT MAGEE, Individually and on behalf of all others similarly 

situated, 

 Plaintiff - Appellant

v.

COCA-COLA REFRESHMENTS USA, INCORPORATED, 

 Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

Before WIENER, CLEMENT, and COSTA, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant Emmett Magee brought this action on behalf of 

himself and others similarly situated against Defendant-Appellee Coca-Cola 

Refreshments USA, Inc. (“Coca-Cola”), asserting claims under Title III of the 

Americans with Disabilities Act (“ADA”). Specifically, Magee alleges that CocaCola owns and operates glass-front vending machines in public spaces and that 

those machines are not accessible to him and others who are blind. Coca-Cola 

moved to dismiss Magee’s complaint, contending that the vending machines it 

operates are not “places of public accommodation” as required by the applicable 

provisions of the ADA. The district court agreed and dismissed Magee’s 

United States Court of Appeals

Fifth Circuit

FILED

August 15, 2016

Lyle W. Cayce

Clerk

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complaint, holding that Coca-Cola’s vending machines are not themselves 

“places of public accommodation.” We affirm.

I.

Magee alleges the following facts, which we assume to be true at this 

stage.1 Coca-Cola’s glass-front vending machines are self-service, fully 

automated machines that dispense bottles and cans of Coca-Cola sodas, as well 

as juices, energy drinks, and waters. According to Magee, Coca-Cola unveiled 

these particular machines in 2000. They are equipped with an array of 

different features, including the ability to accept payment from smart phones 

and other near-field communication devices, wireless internet capabilities, 

credit and debit card processing, motion sensing technology, and onboard 

computer systems.

Magee claims that, despite having these features, Coca-Cola’s vending 

machines lack any meaningful accommodation for use by the blind. This, he 

says, is because the machines are equipped with an entirely visual interface:

The machines use an alphanumeric keypad—which does not contain tactile 

indicators differentiating between letters and numbers—that requires users to 

identify and input selection codes of the beverage they wish to purchase. Those

selection codes are printed and placed below each beverage inside the machine 

and are visible through the machine’s glass front. According to Magee, this 

system renders the blind (1) unable to ascertain the products available inside 

the machines, (2) unable to identify the selection code of any available 

products, (3) unable to input knowingly a selection into the alphanumeric 

keypad, and (4) ultimately unable to purchase products.

 

1 See Chrissy F. by Medley v. Miss. Dep’t of Pub. Welfare, 883 F.2d 25, 26 (5th Cir. 

1989).

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Magee further contends that Coca-Cola’s machines could be made 

accessible to the blind in several ways: (1) retrofitting them with an audio 

interface system and a tactile alphanumeric keypad; (2) developing a 

smartphone application capable of displaying a non-visual representation of 

the contents and corresponding prices for each vending machine; or (3) 

imprinting a non-visually displayed toll-free hotline that the visually-impaired 

could call for assistance in purchasing a beverage.

Magee suffers from macular degeneration, a condition that has rendered 

him legally blind. He encountered one of Coca-Cola’s vending machines at East 

Jefferson General Hospital in Metairie, Louisiana, in February 2014. He was 

unable to use the machine because it did not offer a non-visual means of 

operation. He states that he visited that hospital multiple times before and 

that he reasonably expects to visit it again in the future. Magee adds that, in 

April and May 2015, he was unable to use Coca-Cola’s vending machines at a 

bus station in New Orleans, Louisiana. He regularly uses that bus station and 

reasonably expects to use it in the future.

In suing Coca-Cola on behalf of himself and others similarly situated, 

Magee asserts that Coca-Cola discriminates against blind individuals by 

denying them access to its products in the glass-front vending machines, in 

violation of Title III of the ADA. According to Magee, the vending machines are 

themselves “places of public accommodation” under the statute, making CocaCola liable as the owner and operator of those machines. Magee has not filed 

claims against the hospital or bus station where he encountered the vending 

machines.

Coca-Cola moved to dismiss Magee’s complaint, arguing that it is not 

subject to the ADA because the vending machines that it owns and operates 

are not themselves “places of public accommodation.” The district court agreed, 

and granted Coca-Cola’s motion to dismiss. Magee now appeals.

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II.

We review de novo a district court’s grant of a motion to dismiss.2 Magee 

maintains on appeal, and as he did in the district court, that Coca-Cola’s 

vending machines are themselves “places of public accommodation” under Title 

III of the ADA. He does so because to be liable, Coca-Cola must own, lease, 

lease to, or operate a place of public accommodation.3 Magee acknowledges that

Coca-Cola’s only connection to the hospital and bus station where the relevant 

vending machines are located is its ownership, operation, and maintenance of 

those vending machines. He contends initially that the vending machines are 

“places of public accommodation” under a plain reading of the statute. He 

asserts in the alternative that the Department of Justice’s (“DOJ”) regulations 

clarify that vending machines are “places of public accommodations” under 

Title III.

Title III of the ADA states:

No 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.4

Thus, to be liable under the statute, Coca-Cola must be a “person who owns, 

leases (or leases to), or operates a place of public accommodation.”5 And CocaCola’s vending machines must be places of public accommodation because 

Magee alleges no facts suggesting Coca-Cola has any other connection to the 

hospital or bus station where those machines are located.

 

2 Boyd v. Driver, 579 F.3d 513, 515 (5th Cir. 2009).

3 See 42 U.S.C. § 12182(a).

4 Id.

5 Id.

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The statute does not define “place of public accommodation,” but it does 

define “public accommodation.”6 Under the statute, “private entities are 

considered public accommodations . . . if the operations of such entities affect 

commerce” and fall into one of twelve enumerated categories.7 Magee contends 

that Coca-Cola’s vending machines fall under the category defined in 

subsection (E)—“a bakery, grocery store, clothing store, hardware store, 

shopping center, or other sales or rental establishment”—because, he insists, a 

vending machine is a “sales establishment.”8

The DOJ’s regulations define “place of public accommodation” to mean 

“a facility operated by a private entity whose operations affect commerce and 

fall within at least one” of twelve enumerated categories, substantially similar 

to those provided by 42 U.S.C. § 12181(7).9 Accordingly, under those 

regulations, a vending machine is only a “place of public accommodation” if (1) 

it is a “facility,” and (2) its operations fall within a category of public 

accommodation. Under those regulations, a “facility” is “all or any portion of 

buildings, structures, sites, complexes, equipment, rolling stock or other 

conveyances, roads, walks, passageways, parking lots, or other real or personal 

property, including the site where the building, property, structure, or 

equipment is located.”10 Magee contends that the vending machines are 

“equipment,” “property,” and “structures.” He relies on that regulation’s 

category of public accommodation—“A bakery, grocery store, clothing store, 

 

6 See id. § 12181(7).

7 Id. § 12181(7)(A)–(L).

8 Id. § 12181(7)(E) (emphasis added). In his complaint and before the district court, 

Magee also asserted that Coca-Cola’s vending machines fall under the category of “a 

restaurant, bar, or other establishment serving food or drink.” Id. § 12181(7)(B) (emphasis 

added). On appeal, however, Magee has abandoned this argument, relying exclusively on § 

12181(7)(E).

9 28 C.F.R. § 36.104.

10 Id.

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hardware store, shopping center, or other sales or rental establishment”—

which category is identical to that in the statute.11

The district court acknowledged initially that the vending machines, 

“which [are] clearly personal property or equipment at [the hospital and bus 

station], must comply with the ADA so that patrons with disabilities do not 

suffer discrimination.”12 Magee’s complaint failed, according to the district 

court, because “the defendant he chose to sue for [the] purposes of [pursuing] 

a nationwide class action, does not own, lease, or operate the place of public 

accommodation where he encountered” the vending machines.13 The district 

court concluded that, because the vending machines are “not akin to any of the 

twelve specific categories of places of public accommodation listed in the 

statute and the federal regulations,” Magee “is attempting to expand the term 

‘place of public accommodation’ well beyond its statutory definition in order to 

sue a defendant amenable to nationwide relief.”14

Magee contends on appeal that Coca-Cola’s vending machines are

“places of public accommodation” because they are “sales establishments” 

under 42 U.S.C. § 12181(7)(E), so we begin with the text of that statute.

Neither it nor the regulations define the term “sales establishment.” We

therefore turn to that term’s plain meaning.15

Title 42 U.S.C. § 12181(7) uses the term “establishment” six times:

(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 occupied by the 

 

11 Compare 28 C.F.R. § 36.104 with 42 U.S.C. § 12181(7)(E).

12 Magee v. Coca-Cola Refreshments USA, Inc., 143 F. Supp. 3d 464, 467 (E.D. La. 

2015). 

13 Id.

14 Id.

15 See Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005) (“The appropriate starting 

point when interpreting any statute is its plain meaning.”).

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proprietor of such establishment as the residence of such 

proprietor;

(B) a restaurant, bar, or other establishment serving food or drink;

. . .

(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;

...

(K) a day care center, senior citizen center, homeless shelter, food 

bank, adoption agency, or other social service center 

establishment[.]16

Magee invokes only subsection (E): “a bakery, grocery store, clothing store, 

hardware store, shopping center, or other sales or rental establishment[.]”17

Under the principle of noscitur a sociis, “a word is known by the company 

it keeps.”18 Similarly, the canon of ejusdem generis instructs that “when a 

general word or phrase follows a list of specifics, the general word or phrase 

will be interpreted to include only items of the same class as those listed.”19

Applying these principles, we are convinced that Coca-Cola’s vending 

machines are not “sales establishments” under 42 U.S.C. § 12181(7)(E). The

relevant portion of that statute uses the term “sales establishment” following 

a list of retailers occupying physical stores.20 Other courts, including the Third, 

 

16 See 42 U.S.C. § 12181(7)(A), (B), (E), (F), & (K) (emphasis added).

17 Id. § 12181(7)(E).

18 Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961).

19 Ejusdem generis, BLACK’S LAW DICTIONARY (10th ed. 2014).

20 See 42 U.S.C. § 12181(7)(E).

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Sixth, and Ninth Circuits, have recognized that “[e]very term listed in § 

12181(7) . . . is a physical place open to public access.”21 “They are actual, 

physical places where goods or services are open to the public, and places where 

the public gets those goods or services.”22 Although the term “establishment” 

could possibly be read expansively to include a vending machine, a vending 

machine is not akin to any of the listed examples. Indeed, rather than falling 

within any of those broad categories of entities, vending machines are 

essentially always found inside those entities along with the other goods and 

services that they provide.23

The common meaning of the term “establishment” also supports CocaCola’s view that a “sales establishment” includes not only a business but also

the physical space that it occupies. Merriam-Webster’s Collegiate Dictionary

defines “establishment” as “a place of business or residence with its furnishings 

and staff.”24 It relevantly defines “place” as “a building or locality used for a 

special purpose.”25 Webster’s Third New International Dictionary defines 

“establishment” as a “sizable place of business or residence together with all 

the things that are an essential part of it (as grounds, furniture, fixtures, 

 

21 Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir. 1997); see also Ford v. 

Schering-Plough Corp., 145 F.3d 601, 613–14 (3d Cir. 1998) (“[W]e do not find the term ‘public 

accommodation’ or the terms in 42 U.S.C. § 12181(7) to refer to non-physical access or even 

to be ambiguous as to their meaning.”); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 

1104, 1114–15 (9th Cir. 2000).

22 Weyer, 198 F.3d at 1114.

23 In following the Third, Sixth, and Ninth Circuits, we acknowledge our departure 

from the precedents of the First, Second, and Seventh Circuits, which have interpreted the 

term “public accommodation” to extend beyond physical places. See Carparts Distribution 

Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 18–20 (1st Cir. 1994); 

Pallozi v. Allstate Life Ins. Co., 198 F.3d 28, 31–33 (2d Cir. 1999); Morgan v. Joint Admin. 

Bd., Ret. Plan of Pillsbury Co. & Am. Fed. of Grain Millers, AFL-CIO-CLC, 268 F.3d 456, 459 

(7th Cir. 2001). As the Third and Sixth Circuits have explained, that interpretation ignores 

the doctrine of noscitur a sociis. See Ford, 145 F.3d at 614; Parker, 121 F.3d at 1014.

24 Establishment, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1999).

25 Place, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1999).

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retinue, employees).”26 It too defines “place” as “a building or locality used for 

a special purpose.”27 The American Heritage Dictionary of the English 

Language defines “establishment” as “[a] place of business, including the 

possessions and employees.”28 The New Shorter Oxford English Dictionary

defines “establishment” as “[a]n institution or business; the premises or 

personnel of this.”29 Webster’s Encyclopedic Unabridged Dictionary of the 

English Language defines “establishment” as “a place of business together with 

its employees, merchandise, equipment, etc.”30 Black’s Law Dictionary defines 

an “establishment” as “[a]n institution or place of business.”31 It in turn defines 

“place of business” as “[a] location at which one carries on a business.”32

Finally, the Supreme Court has recognized that the term “establishment” is 

“normally used in business and in government . . . as meaning a distinct 

physical place of business.”33

Based on the unambiguous language of 42 U.S.C. § 12181(7)(E), we 

conclude that Coca-Cola’s vending machines are not “sales establishments” 

under the plain meaning of that term and therefore are not “places of public 

accommodation” under Title III of the ADA. We therefore need not consider 

whether the vending machines are “facilities” under 28 C.F.R. § 36.104. 

Although we could end our analysis here, we further note that our 

conclusion comports with the statute’s legislative history and the DOJ’s 

 

26 Establishment, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1986).

27 Place, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1986).

28 Establishment, THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE

(1976).

29 Establishment, THE NEW SHORTER OXFORD ENGLISH DICTIONARY (1993).

30 Establishment, WEBSTER’S ENCYCLOPEDIC UNABRIDGED DICTIONARY OF THE 

ENGLISH LANGUAGE (1989).

31 Establishment, BLACK’S LAW DICTIONARY (10th ed. 2014).

32 Place of Business, BLACK’S LAW DICTIONARY (10th ed. 2014).

33 A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 496 (1945).

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guidance.34 The statute’s legislative history acknowledges that 42 U.S.C. § 

12181(7)’s categories are “exhaustive,” but cautions that they “should be 

construed liberally, consistent with the intent of the legislation that people 

with disabilities should have equal access to the array of establishments that 

are available to others who do not currently have disabilities.”35 As an example 

of such liberal construction, a House Report instructs that “although not 

expressly mentioned, bookstores, video stores, stationery stores, pet stores, 

computer stores, and other stores that offer merchandise for sale or rent are 

included as retail sales establishments.”36 Likewise, another House Report 

notes that the category including “a bakery, grocery store, clothing store, 

hardware store, shopping center, or other sales or rental establishment” is “only 

a representative sample” and that “[o]ther retail or wholesale establishments 

selling or renting items, such as a book store, videotape rental store, or pet 

store, would be a public accommodation under this category.”37 Notably, 

Congress’s own examples of such liberal construction confine the term “sales 

establishment” to actual stores.

Likewise, the DOJ has acknowledged that the categories of “public 

accommodations” in its regulations “are an exhaustive list,” but, like Congress, 

cautions that the “examples given are just illustrations.”38 As an example, the 

DOJ notes that “the category ‘sales or rental establishments’ would include 

 

34 The Supreme Court instructs that the DOJ’s guidance in reference to the ADA is 

entitled to deference. See Bragdon v. Abbott, 524 U.S. 624, 646 (1998) (“As the agency directed 

by Congress to issue implementing regulations, see 42 U.S.C. § 12186(b), to render technical 

assistance explaining the responsibilities of covered individuals and institutions, § 12206(c), 

and to enforce Title III in court, § 12188(b), the Department’s views are entitled to 

deference.”).

35 H.R. Rep. 101-485 (II), 100, 1990 U.S.C.C.A.N. 303, 383.

36 Id. (emphasis added). 37 H.R. Rep. 101-485 (III), 54, 1990 U.S.C.C.A.N. 445, 477 (emphasis added). 38 Americans with Disabilities Act Title III Covering Public Accommodations and 

Commercial Facilities, § III-1.2000, available at https://www.ada.gov/taman3.html.

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many facilities other than those specifically listed, such as video stores, carpet 

showrooms, and athletic equipment stores.”39 Consistent with the statute’s 

legislative history, all the examples provided by the DOJ are actual stores.

In the context of defining the term “shopping center or mall,” the DOJ 

has also shed light on the meaning of the term “sales establishment.” The DOJ

instructs that “[a] building with five or more ‘sales or retail establishments’” 

qualifies as a “shopping center or mall.”40 Under Magee’s interpretation of 

“sales establishment,” any building that contains five vending machines would 

qualify as a “shopping center or mall,” clearly not the intent of the various 

drafters. That DOJ guidance also, by example, refers to “counters and large 

windows and check-out aisles” as “special features for sales or rental 

establishments.”41

In deciding that Coca-Cola’s vending machines in the instant case are 

not places of public accommodation, we acknowledge the limits of our holding. 

As the district court recognized, those vending machines may very well be 

subject to various requirements under the ADA by virtue of their being located 

in a hospital or a bus station, both of which are indisputably places of public 

accommodation.42 Here, however, Magee sued only Coca-Cola, an entity that 

does not own, lease (or lease to), or operate a place of public accommodation.43

Accordingly, the district court’s dismissal of Magee’s complaint is 

AFFIRMED.

 

39 Id. (emphasis added).

40 Id. at § III-5.4100.

41 Id.

42 See 42 U.S.C. § 12181(7)(F) (identifying a “hospital” as a “public accommodation”); 

id. § 12181(7)(G) (identifying “a terminal, depot, or other station used for specified public 

transportation” as a “public accommodation”); id. § 12181(10) (identifying “specified public 

transportation” as, inter alia, “transportation by bus”). 43 42 U.S.C. § 12182(a).

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