
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1954                     CARPARTS DISTRIBUTION CENTER, INC., ET AL.,                                Plaintiffs-Appellants,                                          v.                         AUTOMOTIVE WHOLESALER'S ASSOCIATION                            OF NEW ENGLAND, INC., ET AL.,                                Defendants-Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Martin F. Loughlin, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                _____________________               James P.  Reidy,  with whom  James  Q. Shirley  and  Sheehan               _______________              _________________       _______          Phinney Bass  & Green Professional Association were  on brief for          ______________________________________________          appellants.               Samuel  A. Marcosson,  Attorney, with  whom James  R. Neely,               ____________________                        ________________          Jr.,  Deputy  General Counsel,  Gwendolyn Young  Reams, Associate          ___                             ______________________          General  Counsel and  Vincent  J.  Blackwood,  Assistant  General                                ______________________          Counsel  were  on  brief  for the  Equal  Employment  Opportunity          Commission, amicus curiae.               William   Garza,  Cary   LaCheen,  Herbert   Semmel,  Thomas               _______________   ______________   ________________   ______          Kendricks  on brief for  American Civil Liberties  Union, Gay and          _________          Lesbian  Advocates and  Defenders  and Gay  Men's Health  Crisis,          amici curiae.               James H.  Schulte, with whom  Burns, Bryant, Hinchey,  Cox &               _________________             ______________________________          Schulte, P.A. was on brief for appellees.          _____________                                 ____________________                                   October 12, 1994                                 ____________________                                         -2-                    TORRUELLA,   Circuit   Judge.     Plaintiffs-appellants                                 _______________          Carparts Distribution Center, Inc.,  Daniel W. Dirsh, and Shirley          M.  Senter, appeal  from  the district  court's order  dismissing          their  complaint for illegal  discrimination based  on disability          under state and federal  laws.  The court granted  judgment under          Fed. R. Civ. P. 12(b)(6) in favor of defendants.                                          I.                                          I.                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                    Our review of dismissal under  Fed. R. Civ. P. 12(b)(6)          is  plenary.  Roth v. United States,  952 F.2d 611, 613 (1st Cir.                        ____    _____________          1991).  We accept as true all of the allegations in the complaint          and draw  all reasonable inferences  in favor of  the plaintiffs.          Id.          ___                                         II.                                         II.                                      BACKGROUND                                      BACKGROUND                                      __________                    In May 1986, Plaintiff  Ronald J. Senter ("Senter") was          diagnosed  as  infected with  Human Immunodeficiency  Virus ("HIV          positive").   In March 1991,  he was diagnosed  as suffering from          Acquired  Immune  Deficiency  Syndrome  ("AIDS").    He  died  on          January 17, 1993.                    Senter  was  the  sole  shareholder,  president,  chief          executive  director, and  an  employee  of Carparts  Distribution          Center,   Inc.  ("Carparts"),   an  automotive   parts  wholesale          distributor incorporated in New Hampshire.                    Since 1977, Carparts has been a  participant in a self-          funded medical reimbursement plan known as Automotive Wholesalers                                         -2-          Association  of  New England  Health  Benefit  Plan ("the  Plan")          offered by  the defendants  in this case,  Automotive Wholesalers          Association of New England,  Inc. ("AWANE") and its administering          trust,  Automotive Wholesalers Association  of New  England, Inc.          Insurance Plan ("AWANE Plan").   Senter was enrolled in  the Plan          since  1977.   In October  1990, AWANE  Plan informed  members of          AWANE,  including Carparts, of its intention to amend the Plan in          order to  limit benefits  for AIDS-related illnesses  to $25,000,          effective January 1,  1991.   Otherwise, lifetime  benefits under          the Plan were, and are, afforded in the amount of  $1 million per          eligible plan member.                    On a number of occasions during and after  1989, Senter          had several serious  illnesses, many  of which were  HIV or  AIDS          related.   Senter directly  submitted claims  for payment  of his          medical  treatment and  medications to  AWANE and the  AWANE Plan          until  spring  or summer  of  1991, when  Carparts  submitted the          claims on Senter's behalf  because he became too sick  or matters          were too complicated for him to do so.                    Senter  and  Carparts  ("plaintiffs"  or  "appellants")          alleged,1  that the Trustees of  the Plan were  aware of Senter's          condition  at the time the  amendments to the  plan were adopted.          Plaintiffs  claim  that the  cap  on  AIDS-related illnesses  was          instituted by defendants with knowledge that Senter was diagnosed                                        ____________________          1   Following  Senter's death,  Shirley M.  Senter and  Daniel W.          Dirsh  were appointed co-executors for  his estate.   On April 1,          1993,  the district  court allowed  the  substitution of  the co-          executors for Senter as plaintiffs in this action.                                         -3-          HIV positive,  suffering from  AIDS, and subject  to AIDS-related          medical  expenses  and that  the  lifetime  cap on  AIDS  related          expenses  was  instituted in  response  to  Senter's illness  and          related  claims that  he had  filed during  the  previous several          months.    According  to  plaintiffs, after  Senter  reached  the          lifetime cap on AIDS related illnesses, defendants breached their          contractual obligation to provide, at a minimum, medical coverage          to Senter for non-AIDS related treatments, by failing, neglecting          or  refusing to make payments  for non-AIDS related  matters in a          complete or consistent manner.                    Plaintiffs  brought  this  action  alleging   that  the          lifetime  cap  on  health  benefits for  individuals  with  AIDS,          instituted by defendants,  represented illegal discrimination  on          the basis  of  a disability.    Such a  discriminatory  provision          allegedly   rendered  Carparts   responsible   for  payments   to          healthcare  providers  on  Senter's behalf  and  effectively  put          Carparts   out  of  compliance   with  anti-discrimination  laws,          subjecting Carparts to potential  liability under N.H. Rev. Stat.          Ann.   354-A ("Section  354-A"), a state anti-discrimination law,          and  the Americans with Disabilities Act ("the ADA"), 42 U.S.C.            12101, et seq.                 __ ____                    The district court dismissed  all of plaintiffs' claims          on July 19, 1993.  This appeal followed.                                         III.                                         III.                                      DISCUSSION                                      DISCUSSION                                      __________                           A.  Notice of Proposed Dismissal                           A.  Notice of Proposed Dismissal                                         -4-                    Plaintiffs first contend that  the district court erred          in dismissing  their complaint  without affording them  notice of          the court's intended dismissal.  We agree.                    Plaintiffs commenced this action in the state courts of          New Hampshire ten  days before  the ADA became  effective.   They          asserted claims under state law only.  The defendants removed the          case  to  federal  court claiming  that  the  issues raised  were          governed and preempted by the Employee Retirement Income Security          Act of 1974, as amended, 29 U.S.C.   1001, et seq. ("ERISA").                                                     __ ____                    At  a  pretrial  conference  on  April  15,  1993,  the          defendants  indicated  their intention  to  move  to dismiss  the          pendent claims, and the plaintiffs moved to amend their complaint          to  assert  claims under  the ADA.    The plaintiffs'  motion was          granted  and  they  amended  their complaint  to  include,  among          others,  claims alleging violations of  Title I and  Title III of          the ADA.  42  U.S.C    12112(a), 12182(a).  The  defendants filed          an  objection to the amendment and the district court treated the          defendants' objection as a  motion to dismiss under Fed.  R. Civ.          P. 12(b)(6).  The court dismissed plaintiffs claims, holding that          neither  Title I nor  Title III of  the ADA applied  to this case          because neither defendant, AWANE or AWANE Plan, was an "employer"          with  respect  to plaintiffs  as required  by  Title I,  and that          neither  defendant was  a "public  accommodation" as  required by          Title III.                    Where no motion to dismiss has  been filed, "a district          court may,  in appropriate circumstances, note  the inadequacy of                                         -5-          the complaint and, on its own initiative, dismiss the  complaint.          Yet a  court may  not do  so without  at least giving  plaintiffs          notice  of the proposed action and  affording them an opportunity          to  address the issue."  Literature, Inc. v. Quinn, 482 F.2d 372,                                   ________________    _____          374  (1st  Cir.  1973)  (internal citations  omitted);  see  also                                                                  _________          Pavilonis v.  King, 626 F.2d  1075, 1078 & n.6  (1st Cir.), cert.          _________     ____                                          _____          denied, 449 U.S. 829 (1980).          ______                    Although AWANE filed an objection to plaintiffs' motion          to  amend  the complaint,  and  plaintiffs  filed a  response  to          AWANE's  objection,  neither  filing  addressed  the  substantive          issues regarding  Title I and Title  III of the ADA  on which the          district  court based its dismissal order.  The court also failed          to give plaintiffs any  notice of its proposed dismissal,  or any          opportunity  to respond  to the  perceived shortcomings  in their          complaint regarding  their claims  under Title  I  and Title  III          prior to the court's  order dismissing the case pursuant  to Fed.          R. Civ.  P. 12 (b)(6).   The court's failure to  give such notice          alone  justifies reversal of this case.  See Literature, 482 F.2d                                                   ___ __________          at 374.   We also find,  however, that the court's  dismissal was          erroneous as a matter of law.  See id.  The district  court erred                                         ___ ___          by  interpreting  Title  I  and  Title III  of  the  ADA  to have          excessively limited applications.  Questions regarding the proper          interpretation  of  the  ADA  are   sure  to  arise  on   remand.          Therefore, we feel that timely guidance is appropriate.                                B.  Title I of the ADA                                B.  Title I of the ADA                    Plaintiffs  contend that  the  district court  erred in                                         -6-          finding that defendants were not "covered entities" under Title I          of the ADA.                    Title I of the ADA, entitled "Employment" provides:                      No  covered   entity  shall  discriminate                      against  a  qualified  individual with  a                      disability[2]  because of  the disability                      of  such  individual  in  regard  to  job                      application   procedures,   the   hiring,                      advancement,  or discharge  of employees,                      employee compensation,  job training, and                      other  terms, conditions,  and privileges                      of employment.          42 U.S.C.   12112(a).                    "Covered entity" is defined as "an employer, employment          agency, labor organization, or joint labor-management committee."          42 U.S.C.   12111(2).                    As the  district court noted, this  provision "makes it          unlawful for a  covered entity  to discriminate on  the basis  of          disability against  a qualified  individual with a  disability in          regard  to, among  other  things, fringe  benefits, available  by          virtue  of employment, whether or not administered by the covered          entity," see 29 C.F.R.    1630.4(f), and "[h]ealth insurance such                   ___          as  that  provided  by  the  defendants  is  considered  a fringe          benefit."  Carparts Distribution Ctr.  v. Automotive Wholesaler's                     __________________________     _______________________          Ass'n, 826 F. Supp. 583, 585  (D.N.H. 1993).  The district  court          _____          found, however, that because neither defendant was an employer of          Senter, neither entity qualified as a "covered entity" as defined                                        ____________________          2   For purposes  of  this appeal,  we assume  that  Senter is  a          "qualified   individual  with   a  disability."     We   make  no          determination  as to whether  defendants' cap on  benefits in the          present case constitutes "discrimination" based on a disability.                                         -7-          by the ADA and  therefore neither was subject to  liability under          Title  I of the ADA.  We believe that the district court erred by          interpreting  Title I  of the  ADA to  permit suits  only against          employers  who  discriminate  with   respect  to  the  terms  and          conditions of employment of their own employees.                    In making our determination we look for guidance to the          Civil Rights Act of 1964, as amended, 42 U.S.C.   2000-e, et seq.                                                                    __ ____          ("Title VII") and cases  interpreting that statute.  There  is no          significant  difference  between  the   definition  of  the  term          "employer" in the  two statutes.   Compare 42  U.S.C.    2000e(b)                                             _______          (Title  VII)   with  42  U.S.C.      12111(5)(A)  (ADA).3     The                         ____          Interpretive Guidance on  Title I  of the ADA,  published by  the                                        ____________________          3  Title VII provides:                      The  term  "employer"   means  a   person                      engaged in an industry affecting commerce                      who  has  fifteen or  more  employees for                      each working  day in  each  of twenty  or                      more calendar  weeks  in the  current  or                      preceding  calendar  year, and any  agent                      of such a person . . . except that during                      the  first  year  after  March  24, 1972,                      persons  having  fewer  than  twenty-five                      employees (and their agents) shall not be                      considered employers.          42 U.S.C.   2000(e)(b).          The term "employer" is defined in the ADA as:                      A person engaged in an industry affecting                      commerce who has 25 or more employees for                      each working  day in  each of 20  or more                      calendar   weeks   in   the  current   or                      preceding calendar year, and any agent of                      such person.          42 U.S.C.   12111(5)(A).                                         -8-          Equal  Employment  Opportunity  Commission ("EEOC"),  establishes          that  the term "employer" is "to be  given the same meaning under          the  ADA that  [it is]  given under  Title VII."4   56  Fed. Reg.          35,740  (1991) (to  be  codified  at  29  C.F.R.     1630,  App.)          (Interpretive Guidance on   1630.2(a)-(f)).  See Meritor  Savings                                                       ___ ________________          Bank,  FSB v. Vinson, 477 U.S. 57, 65 (1986) (EEOC's interpretive          __________    ______          guidelines "while not  controlling upon the  courts by reason  of          their  authority, do constitute a body of experience and informed          judgment to  which courts and  litigants may properly  resort for          guidance")   (internal   quotations   and    citation   omitted).          Additionally,  Title I  of  the ADA  provides  that the  "powers,          remedies  and procedures" of Title  VII shall apply  to claims of          discrimination under Title I of the ADA.  42 U.S.C.   12117(a).                    The  issue before  us  is not  whether defendants  were          employers  of Senter  within the  common sense  of the  word, but          whether they can be considered "employers"  for purposes of Title          I   of  the   ADA  and   therefore   subject  to   liability  for          discriminatorily denying employment benefits to Senter.  If under          any legal  theory defendants could be  considered "employers" for          purposes  of  Title  I,  then   plaintiffs  should  be  given  an          opportunity  to  amend  their   complaint  to  allege  the  facts          establishing the application  of that theory to the present case.          Plaintiffs  have argued, and  we agree, that  defendants could be          considered Senter's "employers," and  therefore may be subject to                                        ____________________          4  The EEOC is the agency entrusted by Congress to administer and          enforce  the  employment provisions  of the  ADA.   42  U.S.C.             12116-17.                                         -9-          liability  under Title  I,  under  any  one  of  at  least  three          theories.                    First,   defendants  would   be  "employers"   if  they          functioned as  Senter's "employer"  with respect to  his employee          health  care coverage, that is, if they exercised control over an          important aspect of his employment.  See Spirt v. Teachers Ins. &                                               ___ _____    _______________          Annuity  Ass'n, 691 F.2d 1054,  1063 (2d Cir.  1982), vacated and          ______________                                        ___________          rem'd  on other  grounds, 463  U.S.  1223 (1983),  reinstated and          ________________________                           ______________          modified  on other  grounds, 735  F.2d 23  (2d Cir.  1984), cert.          ___________________________                                 _____          denied,  469 U.S.  881 (1984)  (interpreting the  term "employer"          ______          under Title VII) ("term  'employer,' . . . is  sufficiently broad          to encompass  any party who  significantly affects access  of any          individual  to  employment opportunities,  regardless  of whether          that  party may technically be  described as an  'employer' of an          aggrieved individual as that  term has generally been defined  at          common law.") (internal quotation  and citations omitted); Barone                                                                     ______          v.  Hackett, 602  F. Supp.  481, 483  (D.R.I. 1984)  (court found              _______          director  of State agency  that administered  disability benefits          for State employees liable under Title VII even though agency did          not employ  the plaintiffs, stating  "Title VII liability  is not          limited  to the entity which issues pay checks to the employee");          Baranek v. Kelly, 630 F. Supp. 1107,  1113 (D. Mass. 1986) (state          _______    _____          home care agency that  had "the 'means and authority'  to control          discriminatory employment practices" of regional employers was an          "employer"  under Title VII  because it  "exercise[d] significant          control over an employment situation").                                         -10-                    If AWANE and AWANE Plan exist solely for the purpose of          enabling   entities   such   as  Carparts   to   delegate   their          responsibility to provide  health insurance for their  employees,          they are so  intertwined with  those entities that  they must  be          deemed  an "employer" for  purposes of Title  I of the  ADA.  See                                                                        ___          Spirt,  691 F.2d at 1063 (finding that an annuity association and          _____          an  equities fund "which exist solely for the purpose of enabling          universities   to  delegate   their  responsibility   to  provide          retirement  benefits   for  their   employees,  are   so  closely          intertwined  with  those universities  . .  .  that they  must be          deemed  an 'employer' for purposes  of Title VII").   Relevant to          this inquiry is whether defendants had the authority to determine          the  level  of benefits  that  would  be  provided  to  Carparts'          employees and whether alternative  health plans were available to          employees through their employment  with Carparts.  If defendants          had  the authority to determine the level of benefits, they would          be acting as an  employer who exercises control over  this aspect          of  the   employment  relationship.5    Also   relevant  to  this          determination is  whether Carparts shares  in the  administrative          responsibilities that result from its employees' participation in          AWANE and AWANE  Plan.  See id.  Such sharing of responsibilities                                  ___ ___          would  tend  to suggest  that  Carparts  and  defendants  are  so                                        ____________________          5  In contrast,  insurance companies which merely sell  a product          to an  employer but  do not  exercise control  over the level  of          benefits provided  to employees  could not be  deemed "employers"          under  this  rationale.    Where  alternative  health  plans  are          available,  it could not be said  that defendants controlled this          aspect of  the employment relationship and  therefore, they would          not be deemed "employers" under this rationale.                                         -11-          intertwined  as to  be  acting  together  as an  "employer"  with          respect  to  health care  benefits.   Only  if the  litigation is          allowed  to proceed  can  plaintiffs develop  a record  to answer          these questions.  For  purposes of Fed. R. Civ.  P. 12(b)(6), the          possibility of a claim is enough to defeat dismissal.                    Second, even  if the defendants did  not have authority          to determine the level of benefits, and even if Carparts retained          the  right to control the  manner in which  the Plan administered          these benefits, defendants would still be rendered "employers" of          Senter  if defendants  are "agents" of  a "covered  entity,"6 who          act  on  behalf of  the  entity in  the matter  of  providing and          administering employee health benefits.7   Just as "delegation of          responsibility   for  employee   benefits   cannot   insulate   a          discriminatory [retirement benefits] plan from attack under Title          VII,"  Spirt, 691  F.2d  at  1063,  neither  can  it  insulate  a                 _____          discriminatory health benefits  plan under  Title I  of the  ADA.          See  id.  (recognizing   that  "exempting   plans  not   actually          ___  ___          administered  by   an   employer  would   seriously  impair   the          effectiveness of Title VII").                    Third, under   102(a)  of the ADA, an employer  may not          discriminate against  a "qualified  individual with a  disability          . . . in  regard to" specified enumerated  aspects of employment.                                        ____________________          6  The district court found that Carparts is a "covered entity."          7  Like Title VII, Title I of the ADA applies to "any agent" of a          "covered  employer."  42 U.S.C.    12111(5)(A) (ADA); Los Angeles                                                                ___________          Dept. of Water & Power v. Manhart, 435 U.S. 702, 718 n.33, (1978)          ______________________    _______          (Title VII).                                         -12-          42 U.S.C.    12112(a).  A  number of cases, although  not in this          circuit, have  interpreted analogous  provisions of Title  VII to          apply to actions taken by a defendant against  a plaintiff who is          not  technically an employee of  that employer.   For example, in          Sibley  Memorial Hospital v.  Wilson, 488  F.2d 1338,  1341 (D.C.          _________________________     ______          Cir.  1973),  the court  applied Title  VII  to a  hospital which          refused  to assign a private  male nurse to  female patients even          though  the nurse was technically not an employee of the hospital          but was an employee  of a particular patient.  We  do not want to          be understood as  holding at  this time that  there is  automatic          coverage wherever one who is an employer of a requisite number of          persons takes  some action that  affects the employee  of another          entity; a great deal  may depend on circumstances.   At the  same          time, we think it premature to rule out the possibility that when          additional facts are developed,  a claim under Title I  analogous          to that in  Sibley might be  made out.   See also Christopher  v.                      ______                       ________ ___________          Stouder Memorial  Hospital, 936  F.2d 870, 875  (6th Cir.  1991),          __________________________          cert. denied, 112 S. Ct. 658 (U.S. 1991) (interpreting Title VII,          _____ ______          court stated that "a  plaintiff is protected if the  defendant is          one  who  significantly  affects  access  of  any  individual  to          employment  opportunities")  (internal  quotations and  citations          omitted); Doe on  behalf of Doe v.  St. Joseph's Hosp., 788  F.2d                    _____________________     __________________          411,  422  (7th Cir.  1986) (argument  that  plaintiff is  not an          employee of defendant employer is not dispositive under Title VII          because  "[t]here are no  indications that  [language proscribing          discrimination by an employer against] 'any individual' should be                                         -13-          read to mean only an employee of an employer").                      Plaintiffs  alleged  that   defendants  were   "covered          entities"  for purposes of the  ADA.  Because  the district court          prematurely  dismissed  plaintiffs'  complaint without  affording          them an opportunity to address the issues upon which the district          court relied  for its dismissal,  the record is  not sufficiently          complete  for  us to determine  whether defendants were  Senter's          employer for purposes of  Title I.  On remand,  plaintiffs should          be  given  an  opportunity to  address  this  issue  so that  the          district court can make a determination as to defendants' Title I          status.8                               C.  Title III of the ADA                               C.  Title III of the ADA                    Title III of the ADA provides:                      (a).   General Rule.  No individual shall                             General Rule                      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).                    Prohibited discrimination under Title III  includes the          denial,   on  the  basis of  disability,  of the  opportunity  to          benefit  from  the  goods, services,  privileges,  advantages  or                                        ____________________          8   We recognize defendants' claim  that a number  of the factual          allegations advanced  in the briefs supporting the appeal are not          alleged in  the complaint.   Our  view, however,  is that  in the          present procedural circumstances the opportunity should have been          given to flesh out the complaint with more  detailed allegations.          If on  remand the plaintiffs  are unwilling or  unable to do  so,          that will be a quite different matter.                                         -14-          accommodations  of an  entity.  42  U.S.C.   12182(b);  28 C.F.R.            36.202.                    The  district   court  interpreted  the   term  "public          accommodation"  as "being limited  to actual  physical structures          with  definite  physical  boundaries  which  a  person physically          enters for the purpose  of utilizing the facilities or  obtaining          services therein."  Because  the court found that neither  of the          defendants possessed those characteristics, it dismissed Senter's          Title  III claim.   Plaintiffs  contend that  the district  court          erred  in finding  that Title  III of  the ADA  did not  apply to          defendants because they were not places of "public accommodation"          within the meaning of the Act.                    Whether  establishments  of "public  accommodation" are          limited to  actual  physical structures  is a  question of  first          impression  in this Circuit.   For the following  reasons we find          that they are not so limited and remand to the  district court to          allow  plaintiffs  the  opportunity  to adduce  further  evidence          supporting their view  that the defendants are  places of "public          accommodation" within the meaning of Title III of the ADA.                    We begin our analysis by looking at the language of the          statute.   Sierra Club v.  Larson, 2 F.3d  462, 467 (1993).   The                     ___________     ______          definition of "public accommodation" states that "[t]he following          private   entities  are  considered   public  accommodations  for          purposes of this subchapter,  if the operations of such  entities          affect commerce-"  and then  provides an illustrative  list which          includes  a "travel service," a "shoe repair service," an "office                                         -15-          of  an   accountant,  or   lawyer,"  an  "insurance   office,"  a          "professional  office  of  a  healthcare  provider,"  and  "other          service establishment[s]".  42 U.S.C.   12181(7)(f).9   The plain          meaning of the  terms do not  require "public accommodations"  to          have  physical  structures for  persons to  enter.   Even  if the          meaning  of "public accommodation" is not plain, it is, at worst,          ambiguous.   This  ambiguity,  considered  together  with  agency          regulations  and public  policy concerns,  persuades us  that the          phrase is not limited to actual physical structures.                     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.  Likewise,          one   can  easily   imagine  the   existence  of   other  service          establishments conducting  business  by mail  and  phone  without          providing  facilities for  their customers to  enter in  order to          utilize  their services.  It would be irrational to conclude that          persons who enter an office to purchase services are protected by          the  ADA, but  persons who  purchase the  same services  over the          telephone or by  mail are not.  Congress  could not have intended          such an absurd result.                                        ____________________          9    The defendants  are private  entities  that operate  a self-          insured  plan.   They  have  not  disputed  that their  operation          affects commerce.                                         -16-                    Our   interpretation  is   also  consistent   with  the          legislative  history of the  ADA.  The  purpose of the  ADA is to          "invoke  the sweep of  Congressional authority . .  . in order to          address  the major  areas of  discrimination faced  day-to-day by          people with  disabilities,"  42 U.S.C    12101(b).   The ADA  was          enacted to  "provide a  clear and comprehensive  national mandate          for the  elimination of  discrimination against individuals  with          disabilities."   42 U.S.C.    12101(b)(1).  The  purpose of Title          III of the ADA,  is "to bring individuals with  disabilities into          the economic  and social mainstream of  American life . .  . in a          clear,  balanced, and  reasonable manner."   H.R.  Rep. No.  485,          101st  Cong., 2d Sess.,  pt. 2, at  99 (1990), reprinted  in 1990                                                         _____________          U.S.C.C.A.N. 303, 381.   In drafting Title III, Congress intended          that people with disabilities  have equal access to the  array of          goods  and services  offered by  private establishments  and made          available to  those who do  not have  disabilities.  S.  Rep. No.          116, 101st Cong., 1st Sess. at 58 (1989).                    Beyond our threshold determination, we must  tread with          care.  Some of the critical language of Title III is both general          and ambiguous--for  example, a key provision  concerns the denial          based  on a disability "of  the opportunity of  the individual or          class  to participate  in or  benefit from  the  goods, services,          facilities,  privileges,  advantages,  or  accommodations  of  an          entity."  42  U.S.C.    12182(b)(1)(A)(1).  As  a matter of  bare          language, one could spend some time arguing about whether this is          intended  merely to provide access to whatever product or service                                         -17-          the subject entity may offer, or is intended in addition to shape          and  control which products and services may be offered.  Indeed,          there may be areas in which a sharp distinction between these two          concepts is illusory.                    One who  simply reads the  Committee Report  describing          the  operations  of Title  III could  easily  come away  with the          impression  that  it is  primarily concerned  with access  in the          sense  of   either  physical   access  to  a   place  of   public          accommodation  or something  analogous, such  as access  provided          through telephone lines, messengers or some other medium.  At the          same  time, there  is  nothing in  that  history that  explicitly          precludes an extension of the statute to the substance of what is          being  offered.  Suppose, for  example, a company  that makes and          distributes tools provides easy access to its  retail outlets for          persons  with every kind of disability, but declines to make even          minor adjustments in the design of  the tools to make them usable          by persons with only quite limited disabilities.                    The statute's treatment of  insurance is a good example          of these ambiguities.  On the one hand, the ADA carves out a safe          harbor  of  sorts for  anyone who  is  "an insurer,  hospital, or          medical service  company, health maintenance organization, or any          agent,  or  entity that  administers  benefit  plans, or  similar          organizations . . . ." 42 U.S.C.   12201(c)(1).  See also id.  at                                                           ________ ___          (c)(2),  (3).  One might  initially suppose that  this is because          Title III would  otherwise cover the  substance of the  insurance          plans.   However,  there is  some  indication in  the legislative                                         -18-          history that the industry received this exemption not because its          policies would  otherwise be substantively regulated  under Title          III, but  because "there is  some uncertainty  over the  possible          interpretations of the language contained in titles I, II and III          as it  applies to insurance .  . . ."   See S. Rep.  No. 116, 101                                                  ___          Cong., 1st Sess. at 84 (1989).                    We think that at this  stage it is unwise to  go beyond          the  possibility that the plaintiff  may be able  to develop some               ___________          kind of  claim under  Title III  even though this  may be  a less          promising vehicle in the present case than Title I.  Not only the          facts but, as we have already noted, even the factual allegations          are quite sparse.  In addition, because of our resolution of  the          Title I  claims, this  case must  be remanded  and is subject  to          further proceedings  regardless of  whether Title III  remains in          the  case.   While  it is  tempting  to seek  to  provide further          guidance, the  nature of the  record and  the way the  issues are          addressed in the appellate briefs make it imprudent to do so.                    Neither Title III nor its implementing regulations make          any mention of physical boundaries or physical entry.  Many goods          and  services are  sold  over  the  telephone  or  by  mail  with          customers never physically entering  the premises of a commercial          entity to purchase the goods or 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                                         -19-          intent that individuals with  disabilities fully enjoy the goods,          services, privileges and  advantages, available  indiscriminately          to other members of the general public.                                         IV.                                         IV.                                    MISCELLANEOUS                                    MISCELLANEOUS                                    _____________                    Plaintiffs also alleged a  violation of N.H. Rev. Stat.          Ann.   354(A), referred  to as the "Law  Against Discrimination,"          and  of the  Civil Rights  Act of  1965, 42  U.S.C.    1985(3).10          Plaintiffs  claimed  in the  district  court  that Section  354-A          serves as an  enforcement vehicle for the ADA and for that reason          should not  be preempted by ERISA, 29 U.S.C.   1144.  Because the          district court found that the ADA did not apply to defendants, it          reasoned that no disruption  in the enforcement of the  ADA would          result by holding  that Section  354-A is preempted.   The  court          then  found Section  354-A  preempted by  ERISA  with respect  to                                        ____________________          10   Plaintiffs claimed that  Senter, being afflicted  with AIDS,          was  a member  of a  discrete and  insular minority  deserving of          protected class status  under 42 U.S.C.    1985(3).   Plaintiffs'          Section   1985  claim  alleged   that  defendants   conspired  to          discriminate against Senter through the institution of a lifetime          cap on AIDS-related medical benefits.             The district  court noted that under  section 1985(3) "[t]here          must   be   some  racial,   or  perhaps   otherwise  class-based,          invidiously  discriminatory  animus   behind  the   conspirators'          action"  and   that  appellants   "must  identify  a   source  of          congressional power to  reach the private conspiracy alleged. . .          ."  Carparts  Distribution Ctr.,  826 F. Supp.  at 587  (internal              ___________________________          quotations and citations omitted).             Because  the district  court  ruled that  defendants were  not          protected  by  either the  employment  provisions  or the  public          accommodation  provisions  of  the  ADA, it  further  found  that          appellants failed to identify a source of congressional  power to          reach  the   private  conspiracy  they   alleged  and  therefore,          dismissed their complaint.                                         -20-          plaintiffs' cause of action.                    The district  court's decision to dismiss  these claims          was based  primarily on its  finding that neither  the employment          provisions  nor the  public accommodation  provisions of  the ADA          applied to defendants.   Because we find that the  district court          erred in dismissing plaintiffs'  ADA claims, we vacate its  order          dismissing plaintiffs Section  354-A claim and  42 U.S.C.    1985          and remand these claims to the district court for reconsideration          in light of this opinion.                                          V.                                          V.                                      CONCLUSION                                      CONCLUSION                                      __________                    Because  the  district   court  dismissed   plaintiffs'          complaint without providing notice  of its intended dismissal and          erred  in interpreting the term  "employer" under Title  I of the          ADA  and   in  concluding   that  defendants  were   not  "public          accommodations" under Title III, we hold  that the district court          erred in dismissing plaintiffs' complaint.                    We  vacate   the  district  court's   order  dismissing                    _______________________________________________________          plaintiffs' ADA claims and  further order that plaintiffs' claims          _________________________________________________________________          under Section 354-A  and 42 U.S.C.    1985 claim be  reviewed and          _________________________________________________________________          reinstated.    We remand  for  proceedings  consistent with  this          _________________________________________________________________          opinion.          _______                                         -21-
